IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


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IS  WIST  MAIN  STIHT 

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CIHM/ICMH 

Microfiche 

Series. 


CIHJVI/ICIVIH 
Collection  de 
microfiches. 


Canadian  Inttituta  for  Hiatorical  Microraproductiont  /  Inatitut  Canadian  da  microraproductiona  hiatoriquaa 


X^ 


Tachnical  and  Bibliographic  Notas/Notas  tachniquaa  at  bibliographiquas 


Tha 
toth 


Tha  instituta  has  attamptad  to  obtain  tha  bast 
original  copy  availabia  for  filming.  Faaturas  of  this 
copy  which  may  ba  bibliographically  uniqua, 
which  may  altar  any  of  tha  imagas  in  tha 
reproduction,  or  which  may  significantly  changa 
the  usual  method  of  filming,  are  checked  below. 


□    Coloured  covers/ 
Couverture  de  couleur 


I      I    Covers  damaged/ 


Couverture  endommagte 


□    Covers  restored  and/or  laminated/ 
Couverture  restaurte  at/ou  pelliculAe 


I      I    Cover  title  missing/ 


Le  titre  de  couverture  manque 


□    Coloured  maps/ 
Cartes  g^^ographiquas  en  couleur 


D 
D 
D 
D 


D 


D 


Coloured  ink  (i.e.  other  than  blue  or  blac'^*/ 
Encre  de  couleur  (I.e.  autre  que  bleue  ou  r!>  rai 

Coloured  plates  and/or  illustrations/ 
Planches  et/ou  illustrations  en  couleur 

Bound  with  other  material/ 
ReliA  avac  d'autres  documents 


Tight  binding  ma/  cause  shadows  or  distortion 
along  interior  margin/ 

La  re  liure  serrie  peut  causer  de  I'ombre  ou  da  la 
distortion  le  long  de  la  marge  intAriaura 

Blank  leaves  added  during  restoration  may 
appear  within  tha  text.  Whenever  possible,  these 
have  been  omitted  from  filming/ 
II  se  peut  que  certaines  pages  blanches  ajouttes 
lors  d'une  restauration  apparaissant  dans  la  taxta. 
mais.  lorsque  cela  itait  possible,  ces  pages  n'ont 
pas  «t*  filmAes. 

Additional  comments:/ 
Commentalras  supplAmentaires; 


L'Institut  a  microfilm^  la  mailleur  exemplaire 
qu'il  lui  a  4tA  possible  de  se  procurer.  Les  dMails 
da  cat  exemplaire  qui  sont  peut-Atre  uniques  du 
point  de  vue  bibliographique,  qui  peuvent  modifier 
une  image  reproduite,  ou  qui  peuvent  exiger  une 
modification  dans  la  mAthode  normale  de  f ilmage 
sont  indiqu6s  ci-dessous. 


I      I   Coloured  pages/ 


D 
D 


Pages  de  couleur 

Pages  damaged/ 
Pages  endommagAes 

Pages  restored  and/oi 

Pages  restaurAes  at/ou  peliicuiies 

Pages  discoloured,  stained  or  foxe< 
Pages  d6colortes.  tachetAes  ou  piquies 

Pages  detached/ 
Pages  d^tachAas 

Showthrough/ 
Transparence 

Quality  of  priii 

Qualiti  InAgaia  da  I'impression 

Includes  supplementary  matarii 
Comprend  du  material  supplimantaira 


I — I  Pages  damaged/ 

I — I  Pages  restored  and/or  laminated/ 

r~J1  Pages  discoloured,  stained  or  foxed/ 

I      I  Pages  detached/ 

r~p^  Showthrough/ 

I      I  Quality  of  print  varies/ 

r~n  Includes  supplementary  material/ 


Tha 
poai 
ofti 
filml 


Orig 
bagi 
thai 
sion 
oth« 
first 
•ion 
or  ill 


Tha 
•hal 
TINI 
whi4 

Map 

diffi 
antii 

b«ai 

righ 
raqi 
mofl 


Only  edition  available/ 
Seule  Edition  disponible 

Pages  wholly  or  partially  obscured  by  errata 
slips,  tissues,  etc..  have  been  refilmed  to 
ensure  the  best  possible  image/ 
Les  pages  totalament  ou  partiallement 
obscurcies  par  un  fauillet  d'errata.  une  pelure. 
etc.,  ont  «t*  fiimAes  A  nouveau  de  fa^on  A 
obtanir  la  meilleure  image  possible. 


This  item  is  filmed  at  tha  reduction  ratio  chackad  below/ 

Ce  document  est  film*  au  taux  da  rMuction  indiqu4  ci*daaaoua. 

10X  14X  1SX  22X 


»X 


30X 


y 


12X 


16X 


aox 


UK 


ax 


32X 


Th«  copy  filmed  h«r«  haa  baan  raproduead  thanka 
to  tha  ganaroaity  of: 


L'axamplaira  film*  f ut  raproduit  grdca  d  la 
ginAroaitA  da: 


Univeriiti  de  Sherbrooke 


UnivarsM  de  Sherbrooke 


Tha  imagaa  appaaring  hara  ara  tha  baat  qi^jlity 
poaaibia  conaidaring  tha  condition  and  It'ri^  .'ty 
of  tha  original  copy  and  in  Icaaping  witK  ri  t 
filming  contract  apaeificationa. 


Original  copiaa  in  printad  papar  covara  ara  flimad 
baginning  with  tha  front  covar  and  anding  on 
tha  laat  paga  with  a  printad  or  illuatratad  impraa- 
aion,  or  tha  bacic  covar  whan  appropriata.  All 
othar  original  copiaa  ara  filmad  baginning  on  tha 
firat  paga  with  a  printad  or  illuatratad  impraa- 
aion,  and  anding  on  tha  IrM  paga  with  a  printad 
or  illuatratad  impraaaion. 


Tha  laat  racordad  frama  on  aach  microficha 
ahail  contain  tha  aymbol  ^^(maaning  "CON- 
TINUED"), or  tha  aymbol  ▼  (moaning  "END"), 
whiehavar  appliaa. 

Mapa.  plataa.  charta.  ate.,  may  ba  filmad  at 
diffarant  raduction  ratioa.  Thoaa  too  iarga  to  ba 
antiraly  includad  in  ona  axpoaura  ara  filmad 
beginning  in  tha  ^ippar  iaft  hand  comar.  laft  to 
right  and  top  to  bottom,  aa  many  framaa  aa 
raquirad.  Tha  following  diagrama  illuatrata  tha 
mothod: 


Laa  Imagas  suivantas  ont  6tA  raproduitas  avec  la 
plua  grand  soin.  compta  tanu  da  la  condition  at 
dai  la  nattati  da  l'axamplaira  film*,  at  an  . , 

conformity  avac  laa  conditiona  du  contrat  da 
filmaga. 

Laa  axampiairaa  originaux  dont  la  couvartura  an 
papiar  aat  ImprimAa  aont  filmte  an  commandant 
par  la  pramiar  plat  at  an  tarminant  soit  par  la 
darniira  paga  qui  comporta  una  amprainta 
d'impraaaion  ou  d'illuatration,  soit  par  la  second 
plat,  aalon  la  caa.  Toua  las  autras  axamplairas 
originaux  sont  fiimia  an  commanpant  par  la 
pramiAra  paga  qui  comporta  una  amprainta 
d'impraaaion  ou  d'illuatration  at  ^n  tarminant  par 
la  dami4ra  paga  qui  comporta  una  taila 
amprainta. 

Un  daa  symbolaa  suivants  apparaitra  sur  la 
darniAra  imaga  da  chaqua  microficha,  salon  la 
caa:  la  symbola  -^  signifia^'A  SUIVRE".  la 
symboia  ▼  aignifio  "FIN  ". 

Laa  cartas,  pianchaa.  tablaaux.  ate  pauvant  dtre 
fiim^a  A  daa  taux  da  reduction  diffArants. 
Loraqua  la  documant  aat  trop  grand  pour  Atra 
raproduit  an  un  saul  clichA.  il  aat  f ilmA  A  partir 
da  I'angla  supAriaur  gaucha,  da  gaucha  A  droita, 
at  da  haut  an  baa,  an  pranant  la  nombra 
d'imagaa  nAcaaaaira.  Laa  diagrammaa  suivants 
iiluatrant  la  mAthoda. 


1  2  3 


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2 

3 

4 

5 

6 

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DIGEST 


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OF 


Fire   iNSURAijgfc  Decisions 

COURTS  OF  ,(iREf];j|^!^Am  AND 
NO^^Ig^AlMiCA. 


J.  S.  BLATCHLEY. 


WITH   TWE    ADDTriONAL    NOTES   TO    THE 
SECOND  EDITION,  BY 

STEPHEN    G.    CLARKE. 


THIRD   EDITION, 

REVISED  AND  ENLARGED. 

By   clement  BATES, 

or  THE  CINCINNATI  BAR. 


-♦•♦- 


NEW   YORK: 
BAKER,  VOORHIS  &  CO.,  PUBLISHERS, 

66    NASSAU    STREET. 

1873. 


,1 


Entered  according  to  Act  of  Congress,  in  tlie  ysKr  1862,  by  Hknrt  A.  LTrrLKTOH  and  Jokl  S.  Blatcb- 
LBT,  in  the  Clerli's  Office  in  the  District  Court  for  the  Nortliem  District  of  Iowa. 


Entered  according  to  Act  of  Congress,  in  tlie  year    S68,  by  Bikbr,  Toorbis  A  Co.,  in  the  Cterk'ft 
Office  of  the  District  Court  of  the  United  States  for '      Southern  District  of  New  Yorlc. 


Entered  according  to  Act  of  Congress,  in  the  year  1S73,  by  Bakrr,  Voorbis  d  Co.,  in  tlie  Office  of  tbe 
Librarian  of  Congress,  at  Washington, 


^ 


il. 


Baku  t  Oodwih,  PaiRTKRg, 
No.  85  Parle  Bow,  New  ToA. 


4  ■ 


MU-J^fr^.l 


i< 


U. 


PREFACE  TO  THE  FIRST  EDITION. 


The  present  work  is  designed  to  embrace  a  digest  of  all  the' 
decisions  on  the  subject  of  insurance  against  fire,  pronounced  in 
the  Courts  of  Great  Britain  and  I^orth  America,  from  the  earliest 
times  down  to  the  latest  reports.  We  have  examined  2,576 
volumes,  and  have  attempted  to  give  abstracts  of  930  cases,  which 
are  embodied  in  1,525  sections ;  and  we  have  read  every  case 
cited.  The  volumes  examined  are  indicated  in  the  table  of  re- 
ports, and  the  cases  examined,  in  the  table  of  cases.  We  have 
attempted  to  make  the  digest  complete  only  so  far  as  regards  fire 
insurance.  That  still  more  bulky  division  of  the  law  which  em- 
braces Marine  and  Life  Insurance,  we  have  not  attempted  to  do 
anything  with,  though  a  few  cases,  which  properly  belong  to  that 
division,  have  crept  into  this  work.  We  have  appended  to  each 
section  the  date  of  the  decision,  which  may  be  foimd  useful  in 
studying  the  conflicts  and  fluctuations  of  judicial  opinion  on  some 
branches  of  the  law ;  and  we  attempted  to  arrange  the  sections 
under  the  several  headings  in  chronological  order,  but,  on  account 
of  practical  ditficultiefe  in  the  preparation  of  the  work,  have  not 
been  able  in  every  instance  to  adhere  to  that  arrangement. 

We  are  acquainted  with  no  other  work  the  design  of  which  is 
to  give  the  entire  body  of  judicial  decisions  on  this  branch  of  the 
law,  and  we  have  had  nothing  by  which  to  test  the  completeness 
of  our  lists.  In  examining  for  cases,  we  have  been  compelled  to 
rely  on  the  indices  and  tables  of  cases  in  the  reports,  and  these  we 
have  not  fonnd  to  be  entirely  reliable,  as  indlcaring  all  the  cases 
on  insurance  which  they  contain.  From  this  cause,  as  well  as 
because  of  mistakes  and  oversights  which  may  have  been  com- 
mitted by  ourselves,  cases  which  ought  to  be  embraced  may  have 
been  overlooked.  We  have,  however,  used  all  the  means  in  our 
power  for  discovering  the  cases,  and  believe  that  few  will  be  fonnd 
to  have  eluded  our  search.  We  shall  be  happy  to  be  advised  of 
any  omissions  or  mistakes  which  may  be  discovered. 


^  J»REFACE. 

In  tlie  preparation  of  both  the  body  of  the  Avork  and  the 
index,  we  have  kept  constantly  in  mind  the  wants  and  habits  of 
thought  of  agents,  officers  of  insurance  companies  and  others, 
practically  engaged  in  the  business  of  insurance,  as  well  as  of  the 
legal  profession ;  and  the  work  has  not  been  entirely  arranged  as 
It  would  have  been,  had  we  designed  it  for  the  latter  class  alone. 
Probably  no  one  will  become  more  thoroughly  aware  of  the 
imperfections  of  the  work  than  ourselves.    Such  as  it  is,  however 
we  submit  it  to  the  public,  in  the  hope  that  the  long  and  weari- 
some labor  it  has  cost  us  may  be  saved  in  some  correspond inrr 
degree  to  those  who  shall  use  it. 

Our  thanks  are  due  to  many  reporters  and  publishers  for 
permission  to  use  their  head  notes,  and  also  to  John  L  Harvey 
ot   the  Dubuque  Bar,  for  assistance  in  the  preparation  of  the 
work 

DuBUQUK,  18G2. 


( t 


PREFACE  TO  THE  SECOND  EDITION. 


In  preparing  this  edition  of  a  book  so  favorably  known,  I 
have  in  no  respect  ventured  to  change  the  phin  of  the  original 
work.  My  aim  has  been  to  make  it  as  complete  as  possible  to 
the  present  time;  and  to  this  end  I  have  carefully  examined 
every  volume  of  reports  published  in  this  country  or  Great 
Britain  since  the  former  edition  appeared,  and  also  a  few  volumes 
of  prior  date  accidentally  omitted  from  that  edition.  The  present 
volume  contains  an  abstract  of  1,246  cases  embodied  in  2,216 
sections,  being  an  increase  of  316  cases  and  6t)l  sections  over  the 
former  edition.  As  tlie  value  of  a  work  like  the  present  depends 
greatly  upon  the  readiness  >vith  which  a  case  in  point  may  be 
found,  I  have  taken  great  pains  to  make  the  index  and  the  cross- 
references  at  the  end  of  each  title  both  full  and  accurate. 

The  growing  importance  of  the  interests  protected  by  insur- 
ances against  tire,  and  the  necessity  of  a  collection  of  the  ad- 
judged cases  upon  that  branch  of  the  law,  is  well  illustrated  by 
the  increase  of  matter  in  the  present  edition.  If  it  shall  be  found 
of  use  in  lightening  the  labors  of  those  who  may  be  called  upon 
to  consider  the  many  and  perplexing  questions  arising  upon  con- 
tracts of  insurance,  I  shall  feel  that  my  labor  will  not  have  been 
without  reward. 

STEPHEN  G.  CLARKE. 
New  York,  Sept.  180S. 


PREFACE  TO  THE  THIRD  EDITION. 


.M 


The  present  edition  contains  an  addition  of  362  cases,  chiefly 
covering  the  period  beginning  with  1868  and  ending  with  June, 
1873,  but  occasionally  dating  as  far  back  as  1845.     All  of  the 
cases  have  been  read  over  witli  great  care— some  of  them  many 
times— in  the  endeavor  to  make  each  statement  precise.    Dicta 
have  been  preserved,  and  are  distinguished  by  the  name  of  the 
judge  prefixed  in  italics ;  and  all  rulings  which,  though  not  ex- 
pressed by  the  court,  are  necessarily  involved  in  the  decision,- 
have  been  gathered,  and  have  the  word  semUe  prefixed  {e.g.,  p.  51,' 
§  76).     Forms  of  statement  referring  to  the  facts  of  cases  have 
generally  been  adopted  as  more  easily  understood  than  theoretical 
abstractions,  and,  when  possible,  language  chosen  suggesting  the 
reason  of  a  ruling.    A  few  corrections  also  have  been  made  in 
previous  parts  of  the  work.    As  will  be  seen,  it  was  not  thouglit 
best  in  the  present  edition  to  change  the  chronological  plan 
hitherto  pursued. 

Having  a  great  preference  for  the  digest  form  of  book  on 
this  topic  of  the  law,  the  undersigned  has  taken  a  great  profes- 
sional interest  in  making  his  share  of  the  present  work  as  thorouo-h 
as  possible.  ^ 

CLEMENT  BATES. 
QiscmsxTi,  Oct.  1873. 


t 


TABLE  OF  CONTENTS. 


4k  k 


.1   »k 


AGENT       .... 

ALIENATION  . 

ALTERATION        .  .  .      ' 

APPLICATION 

ARBITRATION  AND  APPRAISEMENT 

ASSESSMENT  . 

ASSIGNMENT 

BONDS  OP  AGENTS 

BOOKS  OF  ACCOUNT  AND  VOUCHERS 

BURDEN  OP  PROOF 

BURNING  BY  DESIGN  ... 

BYLAWS  AND  CONDITIONS 

CAMPHENE 

CANCELLATION         ..." 

CERTIFICATE 

CHANGE  OF  VENUE 

CLASSIFICATION  OP  RISKS    . 

CONCEALMENT 

CONSEQUENTIAL  DAMAGES  . 

CONSTRUCTION 

CONSUMMATION  OF  CONTRACT 

CONTRIBUTION 

COUNl'ERSIGNING  BY  AGENT 

COVENANTS  TO  INSURE    . 

DAMAGES . 

DAMAGES  BEYOND  ACTUAL  LOSS 

DEPENDENCY  OF  POLICY  AND  PREMIUM  NOTE 

DESCRIPTION  OF  PROPERTY  INSURED 

DISTANCE  OP  OTHER  BUILDINGS     . 

DIVIDENDS     ....  *  ' 

DURATION 

ENCUMBRANCE         ..." 

ENDORSEMENTS.  ... 

ENFORCEMENT  OP  CONTRACT  FOR  POLICY 

ENTIRETY  AND  DIVISIBILITY  OF  POLICY 


PAOB. 

33 
56 

84 
86 
106 
109 
128 
142 
144 
146 
148 
150 
155 
15G 
161 
169 
170 
173 
179 
181 
189 
202 
207 
208 
211 
220 
223 
229 
236 
244 
246 
247 
264 
266 
267 


6 


TABLE  OF  CONTENTS. 


ESTOPPEL       

EVIDENCE  .... 

EXAMINATION  UNDER  OATH      . 
EXECUTIONS        .  .  . 

FALSE  SWEARING  ... 
FLOATING  POLICY 
FOREIGN  INSURANCEJ  COMPANIES 
FRAUD        ..... 
GARNISHMENT  OR  TRUSTEE  PROCESS 
GENERAL  AVERAGE     . 
GOODS  'm  TRUST  OR  ON  COMMISSION 
GUNPOWDER       .... 
ILLEGALITY  OF  CONTRACT 
INCREASE  OF  RISK      . 
INSOLVENCY  .... 
INSURABLE  INTEREST 
INSURANCE  COMPANIES    . 
INTEREST  IN  POLICY  . 

LIEN 

LIGHTNING  .... 

LIMITATION  CLAUSE 

MORTGAGOR  AND  MORTGAGEE 

MUTUAL  COMPANIES  AND  MEMBERS  OF 

NEGLIGENCE        .... 

NEW  TRIAL    .... 

NOTICE  OF  LOSS 

OTHER  INSURANCE 

PAKOL  CONTRACT 

PAROL  EVIDENCE  . 

PAYMENT  OF  LOSS   . 

PAYMENT  OF  LOSS  TO  TRUSTEE 

PAYMENT  OF  PREMIUM 

PLACE  OF  MAKING  CONTRACT  . 

PLEADING  AND*  PRACTICE  . 

PRELIMINARY  PROOFS   . 

PREMIUM  NOTES 

PREMIUM  NOTES  IN  ADVANCE  . 

QUESTIONS  FOR  COURT  AND  JURY 

REBUILD,  REPAIR  OR  REPLACE 

RECEIVERS     .... 

RECOVERY  BACK  OF  LOSSES  PAID 

REFORM  OF  POLICY     . 

RE-INSURANCE 

REMOVAL  .  . 

RENEWAL  OF  POLICY 

RESPONSIBILITY  OF  ASSIGNEE  FOR  ACTS  OF  ASSIGNOR 


PAOI. 

271 

876 

307 

208 

200 

805 

805 

815 

318 

822 

822 

827 

830 

883 

847 

340 

863 

866 

380 

883 

383 

305 

307 

403 

405 

406 

415 

458 

466 

476 

480 

481 

487 

480 

513 


645 
550 
555 
561 
568 
664 
669 
572 
574 
578 


'S 


TABX^    OF  CONTENTS. 


U 


I 


REVIVAL  AND  SUSPENSION  OP  POLICY   ' 
nlBE  , 

SET-OFF 

STOCK  NOTES  AND  SUBSCRIPTIONS 

STORING  OR  KEEPING 

SUBROGATION    -  "  '  '     . 

SUCCESSIVE  LOSSES     *  *  '  ' 

TAXATION  .  •  .  . 

THEFT  .  .     "  '      .     * 

TITLE         .  .      *  ■  • 

TRANSFER  OP  STOCK         .     ' 

TWO-THIRDS  OR  THREE-FOURTHS  CLAUSE 
USAGE  .  .  .  ,  .         uoiv 

USE  AND  OCCUPATION 
VALUE  .  .  .  , 

VALUED  POLICY 
VENUE 
WAIVER     . 

WARRANTY  AND  REPRESENTATION 
WATCHMAN  .  .  ' 

WHAT  PROPERTY  IS  COVERED  By' POLICY 

WHO  MAY  SUE    . 

WRITTEN  PORTION  OF  POUCY       '      .      ' 


PAOI. 

583 
.  S85 
687 
,  589 
603 
.    605 
610 
618 
634 
025 
639 
680 
655 
650 
663 
665 
693 
695 
697 
700 
709 
723 
736 
739 
749 


■\ 


r 


TABLE  OF  CASES. 


V 


Abbott  T.  Hampden  Ins.  Co.  60,  351. 

V.  Shawmut  F.  Ins.  Co.  99,  646. 

Acer  V.  Merchants'  Ins.  Co.  862,  454. 
Adnins  v.  Rockingham  Mut.  Ins.  •  o.  60. 
Addiaon  v.  Kentucky  and  Louisville  Ins. 

Co.  248,  361, 
^Etna  Ins.  Co.  v.  Grube,  98,  'ZIS. 

V,  Harvey,  311. 

V,  Jackson,  67,  221,  352. 

V.  Maguire,  160,  189,  275, 

479. 

V.  Miers,  166,  363. 

V.  Phelps,  606. 

V.  Stevens,  627. 

V.  Tyler,  67, 164,  416,618. 

^tna  Live  St.  P.  and  Tornado  Ins.  Co. 

V.  Olmstead,  263. 
Agnew  V.  Insurance  Co.  673. 
Albany  City  Ins.  Co.  v.  Keating,  169. 
Alelioren  v.  Savillo,  489. 
Aldermen  v.  West  of  Scotland  Ins.  Co. 

162, 
Allen  v.   Chark'.'^town  Mut,  Fire  Ins.  Co. 

241,  638, 

v.  Franklin  Fire  Ins.  Co.  852. 

V.  Hudson  River  Mut.  Ins.  Co.  251, 

283,  477,  679. 

V.  Massnsoit  Ins.  Co.  345. 

V.  Mut.  Fire  Ins.  Co.  336,  636. 

V.  Pacific  Ins.  Co,  697. 

V.  Vermont  Mut.  Fire  Ins.  Co.  222. 

V.  Winne,  641. 

Alleyn  v.  Quebt'c  F.  Ins.  Co.  660. 
Alliuncu  Marino   Ins.   Co.  v.    Louisiana 

State  Ins.  Co.  368,  618. 
Alliance  Mut.  Ins.  Co.  v.  Swift,  156,  534. 
Alman,  M.  «fe  Co.  v.  Phoenix  Ins.  Ci».  61. 
Alston  v.  Mechonics'  Mut.  Ins.  Co.  468. 
American  Ins.  Co.  v.  Schmidt,  543,  609. 
Amer  v.  McDowell,  686. 
Ames  v.  New  York  Union  Ins.  Co.  253, 

387,  432. 
Amesbury  v.  Bowditch  Mut.  F.  Ins.  Co. 

162,  386,  387. 
Andree  y.  Fletcher,  669,  586. 
Andrews  v.  Ellison,  490. 

V.  Union  Mut.  Ins.  Co.  383. 

An;:jL'lr()dt  v.  .T)claware  Ins.  Co.  200,  447. 
Annapolis  A  E.   R.  R.  v.  Baltimore  F. 

Iiid.  Co.  788. 


Anson  v.  Winnesheik  Ins.  Co.  103,  261. 
Appleby  v.  Fireman's  Fund  Ins.  Co.  342, 

688. 
Appleton  Mut.   Fire  Ins.  Co.  v.  Jesser, 

120. 
Archer  v.  Merchants'  &  Manuf.  Ins.  Co. 

600,  (>05. 
Armitage  v.  WinteVbottom,  371. 
Arnet  v.  Milwaukee  Mechanics'  Mut.  Ins. 

Co.  700. 
Ashford  v.  Victoria  Mut.  Ass.  Co.  263. 
Ashland  Mut.  Fire  Ins.  Co.  v.  Uousinger, 

659. 
Aspinwall  v.  Meyer,  547. 
Associated  Firemen's  Ins.  Co.  v.  Assum, 

268. 
Atkinson  v.  Mutual  .\s3.  Society,  381. 
Atlantic  Fire  Ins.  Co.  v.  Goodall,  286, 

433,  637. 
Atlantic  Mut.  F.  Ins.  Co.  v.  Conklin,  308. 

V.  Fitzpntrick,  113. 

V.  Goodall,  157,315,429. 

V.  Sanders,  118,  286,499. 

V.  Young,  499,  501, 639. 

Atwood  V.  Union  Mut.  Fire  Ins.  Co.  668. 
Audubon  v.  Excelsior  Ins.  Co.  290.  462. 
Augusta  Mutual  Fire  Ina.  Co.  v.  French, 

114. 
Aurora  F.  Ins.  Co.  v.  Eddy,  82,  183,  294, 

585,  600,  721,  722. 
Austin  V.  Drewe,  689. 

V.  Story,  396. 

Ayres  v.  Ilardord  F.  Ins.  Co.  48,  77,  78, 

101,  326.  413,  706. 
V.  Homo  Ins.  Co.  49,  78,  474. 

Babbitt  v.  Liverpool,  Lond.  &  Globe  Ins. 

Co.  696. 
Babcock  v.   Montgomery  Co.  Mut.  Ins. 

Co.  383,  663. 
Baer  v.  Phoenix  Ins.  Co.  452. 
Bailey  v.  Hope  Ins.  Co.  488,  528,  738. 
Baily  v.  Gould,  34. 
Baker  v.  Biddle,  264. 

V.  Cotter,  42,  647. 

Baltimore  F.  Ins.  Co.  v.  Lonoy,  163,  184, 

206,  447,  703. 

— —  V.  McGowan,  71. 

Bangs  v.  Bailey,  641. 

y.  Duckingfiold,  118. 


10 


TABLE   OF   CASES. 


<\ 


Banga  v.  Gray,  116. 

V.  Mcintosh,  116,  63T. 

V.  Scidmore,  225,  '^21,  398. 

Banting  v.  Niagara  District  Mut.  P.  Ass. 

Co.  626. 
Baptist  Church  v.  Brooklyn  Fire  Ins.  Co. 

200,  289,  290,  482,  486,  676. 
Baptist  Society  v.  Hillsborough  Mut.  F. 

Ins.  Co.  422. 
Barnes  v.  Union  Mut.  F.  Ins.  Co.  16,  121, 

269,  413,  747. 
Barro  Boot  Co.  v,  Milford  Mut  F.  Ins. 

Co.  100. 
Barrett  v.  Jermy,  334. 
V.  Union  Mut.  Fire  Ins.  Co.  423, 

743. 
Barsalou  v.  Royal  Ins.  Co.  178. 
Bartholomew  v.  Merchants'  F.  Ins.  Co. 

60. 
Bartlett  v.  Union  Mut.  Fire  Ins.  Co.  411, 

699. 
Barton  v.  Home  Ins.  Co.  of  N.  Y.  699. 
Bates  V.  Equitable  Ins.  Co.  81. 
Battaille  v.  Merchants'  Ins.  Co.  of  N.  O. 

4:20,  614. 
Battles  V.  York  Co.  Mut.  F,  Ins.  Co.  92, 

253. 
Bnxendale  v.  Harvey,  232. 
Baxter  v.  Chelsea  Mut.  Fire  Ins.  Co.  43. 

V.  Massasoit  Ins.  Co.  463. 

Bay  State  Mut.  Fire  Ins.  Co.  v.  Sawyer, 

113. 
Bayles  v.  Hillsborough  Ins.  Co.  134. 
Bayley  v.  Onondaga  Co.  Mut.  Ins.  Co. 

142. 
Beadle  r.    Chenango  Co.  Mut.  Ins.  Co. 

111. 
Beach  v.  Bowery  Fire  Ins.  Co.  747. 
Beal  V.  Park  F.  Ins.  Co.  46,  273. 
Beals  V.  Home  Ins.  Co.  477,  •')69,  660. 
Bean  v.  Atlantic  &  St.  Lawrence  U.  R. 

Co.  622. 
Beatty  v.  Lycoming  Co.  Ins.  Co.  663. 
Y. Mut.  Ins.  Co.  416, 

629. 
Beck  V.  Gerraania  Ins.  Co.  304. 
Beebe  v.  Hartford  Mut.  Ins.  Co.  39,  175. 
Beemer  v.  Anchor  Ins.  Co.  743. 
Bell  V.  McElwain,  648. 

V.  Shibley,  639. 

V.  Yates,  649. 

Belleville  Mut.  Ins.  Co.  v.  Van  Winkle, 

460. 
Benedict  v.  Ocean  Ins.  Co.  233,  234,  266, 

446,  762. 
Benjuniin  v.  Saratoga  Co.  Mut.  Ins.  Co. 

'  435,  469,  620. 
Bentley  v.  Columbia  Ins.  Co.  42. 
Borgson  v.  Builders'  Ins.  Co.  140,  160. 
Berkshire  Mutual  Fire  Ins.  Co.  v.  Sturgis, 

664. 
Berry  v.  Brett,  604. 


Berry  v.  Yiites.  607. 
Bersche  v.  Globe  Mut.  Iiia.  Co.  704. 
Bersch  v.  Sinnissippi  Ins.  Co.  127.  643. 
Bezou  V.  Pike,  Lapeyre  <fe  Bro.  276. 
Bibeiid  v.  Liverpool  &  London  Fire  <& 

Life  Ins.  Co.  138. 
Bigler  v.  New  York  Central  Ins.  Co.  440, 

729. 
Bilbrough  v.  Metropolis  Ins.  Co.  166,  716, 
Billings  V.  Tolland  Co.  Mut.  Fire  Ins.  Co. 

671. 
Birmingham  v.  Empire  Ins.  Co.  290.  648. 
Bissell  v.  Royal  Exchange  Assurance  Co, 

666, 
Blake  v.  Exchange  Mut  Ins,  Co.  97,  205, 

446,  620,  784. 
Blakeley  v.  Phcentx  Ins.  Co.  624. 
Blanchard  v.  Atlantic  Ins.  Co.  433,  688. 
V, Mut.  Fire  Ins.  Co. 

74^. 
Blood  V.  Howard  Fire  Ins.  Co.  674. 
Boardman  v.  Merrimack  Mut   Fire  Ins, 

Co.  672,  689. 
V.  New  Hampshire  Mut.  Fire 

Ins.  Co.  670, 
Boatwright  v.  .(Etna  Ins.  Co,  834. 
Bobbitt  v.  Liverpool,  London,  &  Globe 

Ins.  Co.  868. 
Bodlc  V.  Chenango  Co,  Mut.  Ins.  Co.  701, 

740. 
Boehen  v.  Williamsburgh  City  Ins.  Co. 

49,  486. 
Boggs  V.  American  Ins.  Co.  176,  472. 
Boland  V.  Whitman,  228,  610,  644. 
Bonhani  v.  Iowa  Cent  Ins.  Co.  651,  694. 
Bonner  v.  Home  Ins.  Co.  288,  298,  506. 
Borden  v.  liingham  Mut.  Ins.  Co.  212. 
Boston  &  Salem  Ice  Co.  v.  Royal  Ins.  Co. 

222. 
Bostwick  v.  Bass,  321. 
Bouton  v.  American  Mut  Life  Ins.  Co. 

483. 
Bowditch  Mut,  Fire  Ins.  Co.  v.  Winslow, 

182,  252,  253, 
Bowman  v.  Pacific  Ins.  Co.  329. 
Box  v.  Provincial  Ins.  Co,  862. 
Boyle  V.  Franklin  Ins.  Co.  318. 
V.  North  Carolina  Mut  Ins.  Co. 

518. 
Buynton  v.  Clinton  &  Essex  Mut.  Ins.  Co. 

,     66,  224,  728. 
V.  Farmers'  Mut  Fire  Ins,  Co, 

141, 

V.  Middlesex  Fire  Ins.  Co.  698, 

Braden  v,  Louisiana  State  Ins.  Co.  602. 
Bradford  v,  Greenwich  Ins.  Co.  621. 
Bradley  v.  Potomac  Fire  Ins,  Co.  of  Bal- 

tiiiiore,  486. 
lirady  v.  North  Western  Ins,  Co,   669, 

676,  604. 

v.  Western  Assurance  Co.  393. 

Bragdon  V.  Appletou  Mut  F.  Ins.  Co.  197, 


<\ 


TABLE  OF   CASE3. 


11 


Bra;»5  V.  New  England  Mut.  Fire  Ins,  Co. 

ts. 

Brander  v.  Columbia  Ins.  Co.  38. 
Brnnnin  v.  Mercer  County  Mut.  F.  Ins. 

Co.  227. 
Brewer  v.  Chelsea  Mut.  Fire  Ins.  Co.  483. 

V.  Herbert,  361. 

Brichta  v.  Lafayette  Ins.  Co.  133,  323. 
Brink  v.  New  Amsterdam  Ins.  Co.  109. 
Brinley  v.  National  Ins.  Co.  214. 
Brinsley  v.  City  Fire  Ins.  Co.  67. 
British  American  Ins.  Co.  v.  Joseph,  691. 
Brookville  Ins.  Co.  v.  Records,  491. 
Brookman  v.  Metcalf,  400,  648. 
Brough  V.  Higgins,  371. 
Brouwer  v.  Appleby,  545. 

V.  Harbeck,  547. 

V.  Hill,  546,  646. 

Brown  v.  Cattaraugus  County  Mut.  Ins. 

Co.  242,  437. 
V.  Commonwealth  Mut.  Ins.  Co. 

268. 

V.  Crooke,  547. 

V.  Donnell,  317,  363. 

V.  Erie  <fe  Ontario  Ins.  Co,  479, 

V.  Gore  Dist.  Mut.  Ins.  Co.  636. 

— : V.  Hartford  F.  Ins.  Co.  108,  388. 

V.  Kings  County  Fire  Ins.  Co. 

404,  696,  707. 

v.  People's  Mut.  Ins.  Co.  250. 

V.  Quitter,  S.66. 

V.  Quincy  Mut.  F.  Ins.  Co.  662. 

V.  Roger  Williams  Ins.  Co.   108, 

388,  391. 

V.  Royal  Ins.  Co.  658. 

V.  Savannah  Mut.  Ins.  Co.  388, 702. 

V.  Williams,  6;>3. 


Bruce  v.  Gore  Distr.  Mut.  Ins.  Co.  161. 
Brugnnt  v.  Louisiana  State  Marine  and 

Fire  Ins.  Co.  491.        \ 
Bryant  v.  Poughkeepsie  Mut.  Ins.  Co.  750. 
Buckley  v.  Garrett,  77,  78. 
Bufl'ido  Steam  Works  v.  Sun  Mut.  Ins.  Co. 

854,  581. 
Buffc  V.  Turner,  173. 
Buffum  V.  Bowditch  Mut.  Ins.  Co.  635. 

V.  Fayette  Mut.  Fire  Ins.  Co.  484. 

Bumstead  v.  Dividend  Mut.  Ins.  Co.  510, 

702. 
Burbank  v.  Rockingham  Mut.  Ins.  Co.  64, 

425. 
Burge-8  V.  Alliance  Ins.  Co.  219,  735. 
Burgher  v.  Columbian  Ins.  Co.  742, 
Burlington  v,  Putnam  Ins.  Co.  027. 
Burnett  &  Martin  -^ .  Eufaula  Homo  Ins. 

Co.  83. 
Burns  v.  Provincial  Ins.  Co.  747. 
Burr  V.  Broodway  Ins.  Co.  731. 
IJurrill  V.  Chenango  Ins.  Co.  269. 
Buri'itt  V.  Saratoga  Co.  Mut.  F.  Ins.  Co. 

92.  237. 
Burt  V.  People's  Mut.  Ins.  Co.  430. 


Burton  v.  Gore  District  Mut.  Ins.  Co.  432, 

582. 
Busch  v.  Insurance  Co.  627. 
Butinan  v.  Hobbs,  149. 
Byrne  v.  Rising  Sun  Ins.  Co.  622. 

Caballero  v.  Home  Mut.  Ins.  Co.  593. 
Cabot  V.  Given,  471. 
Cain  V.  Lancashire  Ins.  Co  160. 
Calvert  V.  Hamilton  Mut.  Ins.  Co.  717. 
Campbell  v.  Aberdeen  Life  «fe  Fire  Assur- 
ance Co.  492. 

V.  Adams,  120,  39S. 

V.  ^tna  Ins.  Co.  442. 

V.  Charter  Oak  Fire  &  Marine 

xns.  Co.  100,  266,  523,  524. 

V.  Hamilton  Mut.  Ins.  Co.  76. 

V.  Merchants  «fe  Farmers'  Mut. 


Fire  Ins.  Co,  96. 

V.  Monmouth  Mut.   Fire  Ins. 


Co.  415. 

Cannell  v.  Phoenix  Tns.  Co.  296,  692. 
Cnrbis,  ex  parte,  m  re  Croggon,  129. 
Carey  v.  Nagle,  487. 
Carpenter  v.  American  Ins.  Co.  692,  716. 

v.  Mutual  Safety  Ins.  Co.  200. 

V.  Providence  Washington  Ins. 

Co.  264,  418. 

V.  Washington  Ins.  Co.  130,  212. 


Carrington  v.  Commercial  Fire  &  Marine 

Ins.  Co.  671. 
Carroll  v.  Charter  Oak  Ins.  Co.  45,  46. 

136,  462,  676. 
Carrugi  v.  Atlantic  Fire  Ins.  Co.  61,  452, 
Carter  v.  Boehm,  172. 
v.  Humboldt  Fire  Ins.  Co.  135,  234, 

355,  390. 

v.  Niagara  Dist.  Mut.  Ins.  Co.  627. 

V.  Rocket,  370. 


Case  V.  Hartford  Ins.  L„.  281,  673, 
Casey  V.  Goldsmid,  230,  231. 
Cnssacia  v.  Phoenbc  Ins.  Co.  607. 
Caston  V.  Monmoutii  Mut.  F.  Ins.  Co.  102, 

508. 
Catlin  V.  Springiiold  Fire  Ins.  Co.  140, 

160,  403,  613.  007. 
Catron  v.  Tcnne8,«iee  Ins.  Co.  630,  692. 
Chaffee  v.  Cattaraugus  County  Mut.  Ins 

Co.  242,  662. 
Chainbersburgli  Ins.  Co.  v.  Smith,  655 

056. 
Chandler  v.   Worcester  Miit.  F.  Ins.  Co 

403. 
Chapman  v.  Atlantic  &  St.  Lawrence  R.  R 

352. 
Charleston  Ins.  A  Trust  Co.  v.  Neve,  613, 

579. 
Charter  Oak  F.  Ins.  Co.  v.  Star  Ins.  Co 

312. 
Chase  v.  Hamilton  Mut.  Ins.  Co.  39,  190 

232,038.715. 
V.  Washington  Mut.  Ins.  Co.  206. 


12 


TABLE   OF   CASES. 


Chesbrougli  v.  Wright,  549. 
Chisholm  v.  Provincial  Ins.  Co.  683. 
Christie  v.  North  British  Ins.  Co.  190. 
Cinque  Mars  v.  Equitable  Ins.  Co.  145. 
Citizens'  Ins.  Co.   v.  McLaughlin,  291, 

616. 
F.  Ins.  Co.  V.  Doll.  296,  630,  564, 

654. 
Mut    Firo  Ins.  Co.  v.  Sortwell. 

123.  126,273,399,401. 
Mut.  Ins.  Co.  of  Mobile  v.  Lott, 


628. 
City  F.  Ins.  C».  of  Hartford  v.  Carrugi, 

178.  314,  466. 
V.  Mark,  139, 

736. 
City  of  Davenport  v.  Peoria  M.  &  F.  Ins. 

Co.  200, 462,  486. 
of  Worcester  v.  Worcester  Mut.  Fire 

Ins.  Co.  718 
Fire  Ins,  Co.  v.  Corlies,  181,  328, 

590. 
Clnpp  V.  Union  Mut.  Fire  Ins.  Co.  637. 
Clark  V.  Firemen's  Ins.  Co.  350,  727. 
V.  Hamilton  Mut.  Ins.  Co.  147, 177, 

444. 
• V.  Manufacturers'  Ins.  Co.  174, 468, 

686,  710. 

V.  Middleton,  305,  348. 

V.  New  England  Mut.  F.  Ins.  Co.  f.O, 

61,  408,  422. 

V.  Phoenix  Ins.  Co.  293,  303. 

V.  Union  Mut.  Fire  Ins.  Co.  244. 

. V.  Western  Ass.  Co.  650. 

Clnrj'  V.  Protection  Ins.  Co.  727. 
Clinton  v.  Hope  Ins.  Co.  83,  105,  380. 
Colburn  v.  Lansing,  748. 
Coles  V.  Iowa  State  Mut.  Ins.  Co.  400, 401 . 
Collins  V.  Chiirlestowu  Mut.  Fire  Ins.  Co. 

646,  734. 
Columbia  Ins.  Co.  v.  Cooper,   101,  317, 

401,  684, 

. V.  Stone,  228. 

Columbian  Ins.  Co.  v.  Lawrence,  103,  230, 

349,  369,  408,  631,  632,  700. 
Columbus  Ins.  Co.  v.  Walsh,  306,  427, 

563. 
Combs  V.  Hannibal  Sav.  &  Ins.  Co.  51. 

652. 
Conmiercial  Ins.  Co.   v.  Ives,  63,  54. 

V.  Mehlman,  344, 


699. 


270,  274,  652. 


—  V.    Spankneblo.     81, 


■  V.  Supervisors  of  New 
York  City,  626. 

of  Chicago  v.  Huck- 


bergor,  298,  528. 
Commonwealth  Ins.  Co.  v.   Berger,   74, 

186. 
—— V,  Sennett,  217, 

288,  621,  662. 


Commonwealth   Ins.   Co.  v.  Monnlnger, 

99,  288,  719. 
V.  Eagle  F.  Ins.  Co.  348, 

662. 
Concord  Mut.  Fire  Ins.  Co.  v.  Woodbury, 

271,  376. 
Conover  v.  Mutual  Ins.  Co.  36,  69,  740. 
Continental  Ins.  Co.  v.  Mansfield,  814. 
Converse  v.  Citizens'  Mut.  Ins.  Co.  361. 
Conway  Tool  Co.  v.  Hudson  River  Ins. 

Co.  427. 
Cooper  V.  Farmers'  Mut.  Fire  Ins.  Co. 

474,  667. 

V.  Shaver,  120, 121,  641. 

Cornel  v.  Le  Roy,  162,  407,  612. 
V.  Milwaukee  Mut.  Fire  Ins.  Co. 

413,  414. 
Corwin  v.  Urbana  &  Champaign  Co,  Mut. 

Ins.  Co.  363. 
Coston  V.  Alleghany  County  Mut.  Ins.  Co. 

624. 
Couch  V.  City  F.  Ins.  Co.  466,  610. 
Coursin  v.  Pennsylvania  Ins.  Co.  289,  662. 
Courtney  V.  New  York  City  Ins.  Co.  134. 
Cox  V.  .^tna  Ins.  Co.  104,  667,  694. 
Crafts  V.  Union  Mut.  Ins.  Co.  406,  744. 
Cray  v.  Hartford  Fire  Ins.  Co.  383.  ' 
Crocker  v.  People's  Mut.  Fire  Ins.  Co.  723. 
Crombie  v.  Portsmouth  Mut.  Ins.  Co.  625. 
Cromie  v.  Kentucky  A  Lexington  Mut. 

Ins.  Co.  203. 
Cromwell  v.  Brooklyn  Fire  Ins.  Co.  137, 

379. 
Cniok  V.  Vali,  647. 
Crosby  v.  Franklin  Ins.  Co.  729. 
Cruikshank  v.  Brouwer,  646. 
Cumberlond  Valley  Mut.  Prot.  Ins.  Co.  v. 

Douglas,  406,  689. 
V.   Mitchell, 

137,  317,653. 
V.  Scholl,  94, 

286,  659. 
Currie  v.  Mut.  Ass.  Society,  109,  110. 
Curry  v.  Commonwealth  Ins.  Co.  84,  173, 

333,  624.  631. 
Cushman  v.  North  Western  Ins.  Co.  282, 

696. 
Cusbing  V.  Thompson,  373. 

Dndmnn  Monufacturing  Co.  v.  Worcester 

Mut.  Fire  Ins.  Co.  69. 
Dafoo  V.  Johnstown  Distr.  Mut.  Ins.  Co. 

460. 
Dalgleish  v.  Buchanan,  824. 
Dana  v.  Munroe,  898,  608. 
Datiii'l  V.  Robinson,  267. 
Danii'ls  v.  Hudson  River  F.  Ins.  Co.  90, 

488,  583,  664. 
Date  v.  Gore  District  Mut.  Ins.  Co.  148, 

343,  608. 
Davenport  v.  New  England  Mut.  Ins.  Cc. 

248. 


TABLE  OF  CASES. 


13 


David  V.  Hartford  Fire  Ins.  Co.  444,  446, 

644. 
Davies  v.  Home  Ins.  Co.  860. 
Davis,  Hnchott  &  Co.  v.  Western  Mass. 

Ins.  Co.  108,  664. 

V.  Davis,  320,  412. 

V.  Quincy  Mut.  Fire  Ins.  Co.  368, 

378,  649. 

V.  Scottish  Prov.  Ins.  Co.  102. 

Dawes  v.  North  River  Ins.  Co.  33. 

Day  V.  Charter  Oak  Fire  &  Marine  Ins. 

Co.  647. 

V.  Conway  Ins.  Co.  234. 

De  Forest  v.  Fulton  Fire  Ins.  Co.  323, 

349,  662. 
De  Groot  v.  Fulton  F.  Ins.  Co.  109,  292, 

293. 
Deitz  v.  Mound  City  Mut.  Fire  Ins.  Co. 

449. 
Delahay  v.  Mempliis  Ins.  Co.  248. 
De  Longuemare  v.  Tradesmen's  Ins.  Co. 

87,  749. 
Deiilila  v.  Ins.  Co.  344. 
Dennison  v.  Thomuston  Muf  Itis.  Co.  173, 

237. 
Denny  v.  Conway  Stock  <fe  Mut.  Ins.  Co. 

96,  104,  438. 
De  Peyster  v.  American  Fire  Ins.  Co. 

244,  245.  347. 
Dernsmus  v.  Merchants'  Mut.  Ine.  Co.  647. 
De  Silver  v.  State  Mut.  Ins.  Co.  619. 
Devendorf  V.  Beardaley,  316,  637,  661. 
Dewees  v.  Manhattan  Ins.  Co.  164,  721. 
Dey  V.  Pouglikeepsie  Mut.  Ins.  Co.  133. 
Dickson  v.  Equitable  Fire  Ins.  Co.  694. 
Diehl  V.  Adams  Co.  Mutual  Ins.  Co.  86, 

274,  294,  402,  509,  686,  690. 
Dittmer  v.  Germania  Ins.  Co.  346. 
Dix  V.  Mercantile  Ins.  Co.  70. 
Dobson  V.  Laud,  396.  ^ 

V.  Sotheby,  229,  610.' 

Dodge  County  Mut.  Ins.  Co.  v.  Rogers, 

340,  686. 
Doe  d.  Pitt  V.  Laming,  666. 

V.  Shewin,  209. 

Dohn  V.  Farmers'  Joint  Stock  Ins.  Co. 

263,804,611,  631. 
Donaldson  v.  Manchester  Ins.  Co.  416. 
Douglass  V.  Murphy,  209. 
Doyle  V.  Anderson,  490. 
Draper  v.  Charter  Oak  Fire  Ins.  Co.  97, 

271. 
Dreher  v.  iEtna  Ins.  Co.  66. 
Driggs  V.  Albany  Ins.  Co.  676. 
Drinkwater  v.  London  Ass.  Co.  689. 
Dudos  &  Co.  v.  Citizens'  Mut.  Ins.  Co.  467. 
Duncan  v.  Sun  Fire  Ins.  Co.  328. 

V.  Sun  Mut.  Ins.  Co.  376. 

V.  Worrall,  816. 

Dunlop  V.  iGtna  Ins.  Co.  608. 
Dupin  V.  Mut.  Ins.  Co.  691. 
Durand  v.  Thouron,  867. 


Durrar  v.  Hudson  Co.  Mutual  Ins.  Co. 

36,  132,  636. 
Dutton  V.  New  Engl.  Mut  Ins.  Co.  261. 
V.  Vermont  Fire  Ins.  Co.  886. 

Eagle  V.  Emmett,  876. 

Ins.  Co.  V.  Lafayette  Ins.  Co.  886, 

670. 
Eastern  R.  R.  v.  Relief  Fire  Ins.  Co.  53, 

164,  414,  629. 
Eastman  v.  Carroll  County  Mut.  Ins.  Co. 

688. 
Eddy  St.  Iron  Foundry  v.  Farmers'  Mut. 

Ins.  Co.  733. 
V.  Hampden  St. 

&  Mut.  Fire  Ins.  Co.  101. 
Edes  V.  Hamilton  Mut.  Ins.  Co.  681. 
Edmonds  v.  Mutual  Safetv  Fire  Ins.  Co. 

255. 
Edwards  v.  Baltimore  Ins.  Co.  407, 408. 
Egan  V.  Mut.  Ins.  Co.  of  Albany,  89, 248, 

667. 
Ehlen  v.  Rutgers  Fire  Ins.  Co.  601. 
Ela  V.  French,  84. 
Ellicott  V.  U.  S.  Ins.  Co.  360. 
Elliott  V.   Hamilton  Mut.   Ins.   Co.  96, 

762. 

V.  Lycoming  Co.  Mut.  Ins.  Co.  661, 


708, 


V.  Ryan,  39. 


Ellis  V.  Alb;my  City  F.  Ins.  Co,  64. 

V.  Kreutginger,  188,  376. 

Ellmaker  v.  Franklin  Fire  Ins.  Co.  180, 

728. 
Ellwell  V.  Crocker,  688. 
Emery  v,  Piscataqua  Fire  &  Marine  Ins. 

Co.  367. 
Emmett  v.  Reed,  647. 
Emmott  V.  Slater  Mut.  F.  Ins.  Co,  168. 
Eminence  Mut.  Ins.  Co.  v.  Jesse,  640. 
Eniiis  V.  Harmony  Fire  Ins.  Co.  744. 
Equitable  F.  Ins.  Co.  v.  Quinu,  219. 
Eureka  Ins.  Co.  v.  Robinson,   187,  292, 

378,  461,  465. 
Evan.s  V.  Trimountain  Mut.  Ins.  Co.  841, 

561. 
Everett  v.  London  Assurance,  596. 

Fabyan  v.  Union  Mut.  Fire  Ins.  Co.  167, 

433. 
Falls  V.  Conway  Mut.  Fire  Ins.  Co.  648. 
Fairchild  v.  Liverpool  &  London  Fire  Ins. 

Co.  736. 
Fame  v.  Winans,  396. 
Farmers'  Bank  v.  Maxwell,  401,  486. 

V.  Mutual  Assurance  Co. 

129. 

Farmers'  Ins.  A  Loan  Co.  v.  Snyder,  650. 

Mut.  Fire  Ins.  Co.  v.  Marshall, 

40,  636. 

«fe  Mechanics'  Ins.  Co.   v.  Sim- 


mons, 681. 


14 


TABLE   OF  CASES. 


Farmers'  Loan  A  Tr.  Co.  v.  Harmony  F. 

&  M.  Ins.  Co.  737. 
Faulkner  v.  Central  F.  Ins.  Co.  of  New 

Brunswick,  828. 
Fftwcett  V.  Liverpool,  Lond.  <b  Globe  Ins. 

Co.  169. 
Fayette  Mut.  Fire  Ins.  Co.  v.  Fuller,  124, 

169,  686. 
Fayles  t.  National  Ins.  Co.  of  Hannibal, 

297. 
Fell  V.  Lutwidge,  480. 

V.  McHenry,  640,  642. 

Felton  T.  Brooks,  396. 

Ferree  v.  Oxford  F.  &  L.  Ins.  Co.  141. 

Ferris  v.  North  American  Insurance  Co. 

491,  739. 
Fernandez  v.  Merchants'  Mut.  Ins.   Co. 

630. 
Field  V.  Crawford,  819. 
Finlay  r.  Lycoming  Mut.  Insurance  Co. 

69,  226. 
Fire  Association  of  Philadelphia  v.  Wil- 

liamsoD.  679. 
Department  of  Milwaukee  v.  Helfen- 

stein,  311. 

Department  of  Troy  v.  Bacon,  626. 

Firemen's  Ins.  Co.  v.  Crandall,  702. 
BeneTolent     Association     v. 

Lounsbury,  310. 
Fire  4  Marine  Ins.  Co.  of  Wheeling  v. 

Morrison,  139. 
First  Natl  B'k  of  Kansas  City  v.  Hogan, 

296. 
of  Balston  Spa  v.  Ins.  Co. 

of  N.  Am.  726. 
Fish  V.  Cottenet,  466. 
Fitchburg  Railroad  v.  Cliarlestown  Mut. 

Ins.  Co.  730. 
Fitzsimmons  v.  City  Fire  Ins.  Co.  207, 312, 

478. 
Flannagan  r.  Camden  Mut  Ins.  Co.  498, 

743. 
Fletcher  v.  Commonwealth  Ins.  Co.  631. 
Flint  V.  Ohio  Ins.  Co.  481. 
Flynn  v.  Merchants'  Mut  Ins.  Co.  607. 
Fogg  V.  Griffin,  316. 
V.  Middlesex  Mut  Ins.  Co.  131, 132, 

282. 
Folger  v.  Columbian  Ins.  Co.  366. 
Folsom  V.  Belknap  Co.  Mut  Ins.  Co.  742. 
Foot©  V.  North  Western  Ins.  Co.  444. 
Forbes  v.  Agawam  Mut  F.  Ins.  Co.  424, 

426,  431,  687. 
Forbuah  v.  Western  Mass.  Ins.  Co.  430. 
Foster  v.  Equitable  Mut.  F.  Ins.  Co.  220, 

679. 
Fonrdrinier  v.  Hartford  Fire  1l«.  Co.  344. 
Fowler  v.  iEtna  Ins.  Co.  230,  i.'Tft,  406, 

663. 
— —  V.  New  York  Indemnity  Ins.  Co. 

183, 146,  366,  498. 
T.  Palmer,  396. 


Fox  V.  Phenix  Fire  Ins.  Co.  234,  377. 
—  V.  Conway  Fire  Ins.  Co.  607. 
Francis  v.  Butler  Mut  Fire  Ins.  Co.  120. 

V.  Soraerville  Mut.  Ins.  Co.  337, 

702. 
Franklin  v.  Atlantic  Fire  Ins.  Co.  50, 661. 

V.  National  Ins.  Co.  609. 

Franklin  F.  Ins.  Co.  v.  Brock,  188, 294. 
V.  Coates,  354,  502, 


617,  640. 


666. 


V.  Hamill,  279,  614. 

V.  Massey.  157. 

V.    Updegraff,    233, 


302,  446,  662,  694,  '703, 

V.  West,  318. 

Franklin  Ins.  Co.  v.  Culver,  144,  301. 

V.  Drake,  418,  467. 

V.  Findlay,  861. 

V.  Hewitt  664. 


Freeman  v.  Fulton  Fire  Ins.  Co.  882,  606, 

506. 
French  v.  Conn  alley,  316. 

V.  Lafayette  Ins.  Co.  886. 

Friedlander  v.   London  Assurance    Co. 

229,  277. 
Friesmuth  v.  Agawam  Mut  Ins.  Co.  249, 

267,  686. 
Frisbie  v.  Fayette  Mut.  Ins.  Co.  678. 
Frink  v.  Hampden  Ins.  Co.  138,  748.    • 
Frost  V.  Saratoga  Co.  Mut  Ins.  Co.  223, 

239,  533. 
Frv  V.  Fry,  34 

Fullam  V.  N.  Y.  Union  Ins.  Co.  387. 
Fuller  V.  Boston  Mut.  Ins.  Co.  666. 
Furniss  v.  Sherwood,  397. 

Gale  V.  Belknap  Co.  Ins.  Co.  441. 
Gnhagan  T.  Union  Mut  Ins.  Co.  98,  258. 
Gamwell  v.  Merchants'  &  Farmers'  Mut. 

F.  Ins.  Co.  862,  651. 
Garcolon  v.  Hampden  Fire  Ins.  Co.  662, 

719. 
Gnriliner  v.  Piscataquis  Mut.  Ins.  Co.  224, 

337. 
Gardner  v.  Hamilton  Mut  Ins.  Co.  400. 
(iarrett  v.  Provincial  Ins.  Co.  720. 
Gasner  v.  Metropolitan  Ins.  Co.  583. 
Gates  V.  Madison  Co.  Mut.  Ins.  Co. 

239,240,334,403,672. 

V.  Smith,  370, 

Gaylord  v.  Lamar  Fire  Tns.  Co*  649. 


174, 


Goib  v.  Enterpri-.o  Ir 

V.  Internati '>'>'>■ 

General  Mut.  Irs.  C  •  . 
Genesee  MuN  Ihf.  C  v 
Gerhnuser  v,  Nortli  T 

Co.  148,  235,  30i,  . 
Gorman  Mut.  Fire  Ins, 

399. 
Getcholl  V.  iEtna  Ins.  Co.  737 
Gies  V.  Bechtner,  164,  321. 


-.0.  JiO. 

.  I'lips,  309. 
Wostnian,  382. 

<&  Merc.  Ins. 
.0,  7S2. 
Co.  V.  Franck, 


.1 


TABLE  OF  CASES. 


15 


Gilbert  y.  National  Ins.  Co.  883. 
V.  Nortli  American  Fire  Iub.  Co. 

67,  613. 

v.  Phoenix  Ins.  Co.  448,  446. 

Gillaume  v.  Louisiana  Ins.  Co.  277. 

Gillt'tt  V.  Mawman,  366. 

Gilliatt  y.  Pawtucket  Mat.  F.  Ins.  Co.  79, 

688,  720. 
Girard  Fire  &  Marine  Ins.  Co.  v.  Ste- 

plienson,  176,  339,  340. 

Ins.  Co.  y.  Field,  820. 

Glendale  Woolen  Manf.  Co.  y.  Protection 

Ins.  Co.  469,  712,  724. 
Glenn  y.  Lewis,  676. 
Glens  Falls  Ins.  Co.  y.  Judge  of  Jefferson 

Co.  313. 
(People  ex  rel.)  y.  Fer- 
guson, 627. 
Globe  Ins.  Co.  y.  Boyle,  862,  380,  631. 
In  Matter  of  Receivers  of, 

661.  603. 
Gloucester  Manf.  Co.  y.  Howard  F.  Ins. 

Co.  38,  92,  196,  714. 
Goit  y.  National  Protection  Ins.  Co.  132, 

166,  481,  482. 
Goldstone  v.  Osborn,  107. 
Goodall  y.  New  England  Mut.  Fire  Ins. 

Co.  194,  425,  657,  664,  741. 
Gooden  y.  Amoslieag  Fire  Ins.  Co.  386. 
Goodfellow  y.  Times  «fe  Beacon  Ins.  Co. 

158. 
Goodwin  y.  U,  S.  Annuity  &  Life  Ins. 

Co.  38. 
Goss  y.  Citizens'  Ins.  lh.  762. 
Gottsman  y.  Penn.  Ins.  Coi  269. 
Gould  y.  British  Am.  Ass.  Co.  689. 
y.  Yorli  Co.  Mut  Fire  Ins.  Co.  177, 

269,  646,  718. 
Goulstone  y.  Royal  Ins.  Co.  364. 
Goye  y.  Farmers'  Mut.  F.  Ins.  Co.  405. 
Granger  y.  Howard  Ins.  Co.  499. 
Grant  y.  ^tna  Ins.  Co.  217,  717. 

y.  Howard  Ins.  Co.  561,  669. 

y.  Lexington  Ins.  Co.  386. 

Gray  y.  Gibson,  401. 

Great  Falls  Mut.  F.  Ins.  Co.  y.  Harvey, 


122,  399. 
Great  Western  Ins. 
521. 


Co.  V.  Staaden,  605, 


4  f 

1 


V.  Thayer,  660. 

Greaves  v.  Niagara  District  Mut.  Ins.  Co. 

626,  527. 
Green  y.  Bridges,  208. 
Greenhow  v.  Bacton,  489. 

V.  Buck,  110. 

Greenwal'l  v.  Insurance  Co.  697. 
Grevemeyer  v.  Southern  Mut.  F.  Ins.  Co. 

361. 
Griffin  y.  Kentucky  Ins.  Co.  366. 
Grosvenor  v.  Atlantic  F.  Ins.  Co.  133, 680. 
Guernsey  v.  American  Ins.  Co.  142,  664, 

669,  709. 


Hackney  y.  Alleghany  Co.  Mut  Ins.  Co. 

279. 
Hale  y.  Mechanics'  Mut  Fire  Ins.  Co.  433, 

680. 

y.  Union  Mut  Fire  Ins.  Co.  688. 

Haley  v.  Dorchester  Mut.  Fire  Ins.  Co. 

98,  183,  206,  660,  734. 
Halloclc  y.  Commercial  Ins.  Co.  196,  198, 

483,  499. 
Hall  V.  Peoples'  Mut  Ins.  Co,  241,  677, 

698,  702. 
Hall  <&  Long  v.  Railroad  Cos.  623. 
Hamilton  Mut  Ins.  Co.  v.  Hobart,  114. 

y.  Parker,  126. 

Hamilton  y.  Lycoming  Ins.  Co.  193. 

Hammer  v.  Johnson,  379. 

Hardy  v.  Union  Mut  Fire  Ins.  Co.  99,446. 

Hare  v.  Barstow,  467. 

Harklns  v.  Quincy  Mut.  Fire  Ins.  Co.  625. 

Harper  v.  Albany  Mut.  Ins.  Co.  761. 

y.  City  Ins.  Co.  166,  285,  760. 

Harris  v.  Columbia  Co.Aiut  Ins.  Co.  677. 
Columbian  Mut.  Ins.  Co.  666. 
Eagle  Fire  Ins.  Co.  696. 
Ohio  Ins.  Co.  416,  417. 
Phoenix  Ins.  Co.  321,  394. 
Protection  Ins.  Co.   202,  278, 

406,  613,  667. 

y.  York  Mut  Ins.  Co.  358,  696. 

Harrison  v.  City  Fire  Ins.  Co.  687. 

Hart  y.  Achilles,  398. 

v.  Western  R.  R.  352,  619. 


•v. 
•v. 
•v. 
•y. 

•v. 


Hadden,  864. 
Walsh,  83,  629, 


Hartford  Fire  Ins.  Co. 

678. 

y.  Ross,  77. 

Hartford  Protection  Ins.  Co.  v.  Harmer, 

see  Protection  Ins.  Co.  v.  Harmer. 
Haskell  y.  Monmouth  Fire  Ins.  Co.  477. 
Haskins  v.  Hamilton  Mut.  Ins.  Co.  284, 

495,  557. 
Hathorn  v.  Germania  Ins.  Co.  161. 
Ilntton  v.  Beacon  Ins.  Co.  435. 

V.  Provincial  Ins.  Co.  478. 

Haverhill  Ins.  Co.  v.  Prescott,  228,  311. 
Hawkes  v.  Dodge  Co.  Mut  Ins.  Co.  266, 

503,  684. 
Ilaxall  v.  Shippen,  370,  371. 
Haj'ward  v.  Liverpool  &  London  Fire  <k 

Life  Ins.  Co.  593,  698. 
v.  New  England  Mut.  Ins.  Co. 

250. 

v.  Northwestern  Ins.  Co.  762. 

Hazard  v.  Franklin  Mut  Fire  Ins.  Co.  76, 

122. 
Healoy  v.  Imperial  Fire  Ins.  Co.  62,  148, 

453,  454. 
Heath  v.  Franklin  Ins.  Co.  181,  614. 
Ileaton  v.  Manhattan  Fire  Ins.  Co.  485, 

647. 
Henderson  v.  Western  Marine  <b  Fire  Ins. 

Co.  149,  213,  300,  404. 


T 


16 


TABLE  OP  CASES. 


Heneker  v.  British  Am.  Assurance  Co. 

843,  698. 
Herckcnrath  v.  American  Mdt.  Ins.  Co. 

812,  670. 
Hercules  Ins.  Co.  v.  Hunter,  108,  212. 
Herkimer  Co.  Mut.  Ins.  Co.  v.  Fuller,  112. 

V.  Rice,  866. 

Herrick  v.  Union  Mut.  Fire  Ins.  Co.  686. 
Herron  v.  Peoria  Marine  <fe  Fire  Ins.  Co. 

605. 
Hersey  v.  Merrimack  Co.  Mut.  Fire  Ins. 

Co.  283,  693. 
Hervey  v.  Mut.  Fire  Ins.  Co.  of  Prcscott, 

842. 
Hickey  v.  Anchor  Assurance  Co.  389. 
Hickman  v.  Long  Island  Ins.  Co.  802. 
Hidden  v.  Slater  Mut.  Fire  Ins.  Co.  878. 
Hill  V.  Cumberland  Val.  Mut  Pro.  Co. 

80,  861. 

V.  Lafayette  Ins.  Co.  176. 

V.  Reed,  880,  648. 

Hillier  t.  Alleghany  Co.  Mut.  Ins.  Co. 

672,  603. 
Hobbs  V.  Manhattan  Ins.  Co.  813. 

V.  Memphis  Ins.  Co.  66. 

Hobby  V.  Dana,  674. 

Hobson  V.  Wellington  District  Ins.  Co. 

671. 
Hodges  T.  Tennessee  Marine  &  Fire  Ins. 

Co.  469. 
Hodgkins  v.  Montgomery  Co.  Mut.  Ins. 

Co.  178,  620,  622,  644. 
Hoffman  v.  .^tna  Fire  Ins.  Co.  74,  73, 

186,  218,  219,  273,  404,  622. 

V.  Western  Empire  Ins.  Co.  149. 

V.  Western  M.  &  F.  Ins.  Co.  213, 

801. 
Holbrook  v.  American  Ins.  Co.  65, 182, 

424,  608. 

—  V.  Bassett,  648. 

HoUicgsworth  v.  Broderick,  490. 
Holmes  v.  Charleston  Mut.  Ins.  Co.  468, 

666,  728. 
Home  V.  Mut.  Safety  Ins.  Co.  670,  663. 
Home  Ins.  Co.  v.  Cohen,  631. 

V.  Favorite,  187,  827,  737. 

V.  Stanchfield,  610. 

Hone  V.  Allen,  646. 

V.  Ballin,  646. 

——  V.  Folger,  646. 

V.  Mutual  Safety  Ins.  Co.  663. 

Honnick  v.  Phoenix  Ins.  Co.  470,  676. 
Honore  v.  Lamnr  F.  Ins.  Co.  622. 
Hood  Y.  Manhattan  Fire  Ins.  Co.  729. 
Hooksett  v.  Concord  Railroad,  862. 
Hooper  v.  Hudson  River  Ins.  Co.  68. 
Hope  Mut.  Ins.  Co.  v.  Brolaky,  641. 

F.  Ins.  Co.  V.  Beckmann,  402. 

Hopkins  v.  Provincial  Ins.  Co,  661. 
Horwitz  v.  Equitable  Mut.  Ins.  Co.  449. 
Hough  V.  City  Fire  Ins.  Co.  44,  279,  478, 

643,  686. 


Houghton  V.  Manufacturers'  Mut.  Fire  Ins. 

Co.  88,  89,  710,  728. 
Hovcy  V.  American  Mul.  Ins.  Co.  469, 

496,  724. 
Howard  Fire  &  Marine  Ins.  Co.  v.  Cor- 

nick,  472.  602.  683. 
Howard  Ins.  Co.  v.  Scribner,  203. 

V.  Bruner,  91,  182,  261. 

Howard  v.  Ky.  &  Louisville  Mut.  Ins.  Co. 

836,  698. 

V.  Albany  Ins.  Co.  69. 

V.  City  Fire  Ins.  Co.  279. 

— — —  V.  Franklin  Marine  ii  Fire  Ins. 

Co.  476. 
Howell  v.  Baltimore  Equitable  Society, 

839,  683. 
Howland  v.  Edmonds,  649. 

V.  Meyer,  86,  647. 

Hoxsie  y.  Providence  Mut  Fire  Ins.  Co. 

76,  271,  682. 
Hubler  v.  Taylor,  642. 
Huckins  v.  Peoples'  Mut  Fire  Ins.  Co.  403, 

668,  669,  729. 
Hughes  V.  Mutual  Fire  Ins.  Co.  of  New 

Castle,  131. 
Hunt  v.  Simonds,  495. 

V.  Hudson  River  Ins.  Co.  494. 

Huntley  v.  Beecher,  226,  689. 
v.  Merrill,  488,  639. 


—  v.  Perry,  227. 


267. 


Hurlburt  v.  Carter,  116. 
Hutchina  v.  Cleveland  Mut.  Ins.  Co. 
Hutchinson  v.  Western  Ins.  Co.  430. 
Hyatt  V.  Wait,  184,  398,  642,  704. 

V.  Whipple,  289,  364. 

Hyde  t.  Goodenow,  487. 

V.  Lynde,  684. 

Hygum  y.  iEtna  Ins.  Co.  204,  438. 
Hynds  y.  Schenectady  Co.  Mut.  Ins.  Co. 

403,612. 
Hynes  v.  McFarland,  692. 

Illinois  Mut  F.  Ins.  Co.  v.  Fix.  456,  683. 
Illinois  Mut.  Ins.  Co.  v.  Andes  Ins.  Co.  672. 
y.  Marseilles  Manf. 

Co.  682. 

y.O'Nene,423,468. 

Independent  Mut.  Ins.  Co.  v.  Agnew,  629. 
Indiana  Mut.  F.  Ins.  Co.  y.  Choraberlain, 

881. 

y.  Conner,  224. 

V.  Coquillard,  61, 


223,  382. 


V.  Rutledge,  477, 


698. 

Ingrams  y.  Mutual  Assurance  Society,  248. 
Inland    Insurance    and    Deposit  Go.  v. 

Stauifer,  411,  437. 
Inman  y.  Western  Fire  Ins.  Co.  407. 
In  re  Receivers  of  Globe  Ins.  Co.  661, 603. 
Insurance  Co.  y.  Boy  kin,  611,  630. 
y.  Chase,  369,  663. 


TABLE  OF  CASES. 


17 


« *. 


Insurance  Co.  v.  Conner,  687. 

V.  Drake,  350. 

V.  Francis,  314. 

V.  Jarvis,  636. 

V.  Johnson,  36,  196,  283. 

V.  Rupp.  216. 

V.  Seitz.  491. 

V.  Slaugliter,  189,  617. 

'—  V.  Stockbower,  225,  433. 

V.  Tweed,  699, 

V.  Updegraff,  220. 

V.  Weide,  295. 

Insurance  Cos.  v.  Weides,  "96,  298,  304, 

632. 
Insurance  Co.  of  North  Am.  v.  McDowell, 

104,  262,  346,414,  464, 479,  510,  696, 

721. 
— — ^— — T.  Swineford, 

611. 
Iowa  State  Ins.  Co.  v.  Prosser,  118. 
Irving  y.  Excelsior  Fire  Ins.  Co.  286, 617, 

639. 

Jackson  v.  Farmers'  Mut.  F.  Ins.  Co.  252, 

430,  742. 
■ v.  Massachusetts  Mut.  Fire  Ins. 

Co.  67,  416. 
Jacobs  V.  Eaple  Mut.  F.  Ins.  Co.  100, 259. 

V.  Equitable  Ins.  Co.  440, 442, 501. 

Jefferson  Ins.  Co.  v.  Cotheal,  87,  277,  749. 
Jenkins  v.  Quincy  Mut.  Ins.  Co.  470, 639. 
Jennings  v.  Chenango  Co.  Mut.  Ins.  Co. 

161.239,468.670. 
Jesael  v.  William3bur<>;h  Ins.  Co.  739. 
Jewett  V.  Home  Ins  Co.  708. 
Johnson  v.  Berkshire  Mut.  Fire  Ins.  Ca. 

404. 
Johnstone  t.  Niagara  District  Mut.  Ins. 

Co.  260. 
Johnston  v.  West  of  Scotland  Ins.  Co. 

690.  ' 

Jolly  V.  Baltimore  Equitable  Society,  666. 
Jones  V.  Dana,  316. 

V.  Firemen's  Fund  Ins.  Co.  617. 

V.  Maine  Mut.  Fire  Ins.  Co.  417. 

V.  Paris,  603. 

V.  Provincial  Ins.  Co.  600. 

V.  Sisson,  116,  116,  286,  308. 

V.  Smith.  307. 

Manuf.  Co.  v.  Manufacturers'  Mut. 

Ins.  Co.  84,  146. 

Joyce  V.  Maine  Ins.  Co.  286,  838,  681. 
Jube  v.  Brooklyn  Ins.  Co.  146. 
Judiile  V.  American  Live  Stock  Co.  606. 
Judkins  v.  Union  Mut.  Fire  Ins.  Co.  299. 

Keane  t.  Brandon,  40. 

Keeler  v.  Niagara  Fire  Ins.  Co.  76,  186, 

607,  563,  689. 
Keely  v.  Insurance  Co.  324. 
Keenan  v.  Dubuque  Mut.  Fire  Ins.  Co. 

364,  706. 


Keenan  ▼.  Missouri  State  Mut.  Ins.  Co. 

44,  227,  519. 
Keim  v.  Home  Mut.  F.  &  M.  Ins.  Co.  of 

St.  L.  201,  393. 
Keith  v.  Globe  Ins.  Co.  346,  362,  668. 

V.  Quincy  Mut.  Fire  Ins.  (,'o.  687. 

Kellar  v.  Merchants'  Ins.  Co.  361. 
Keller  v.  Equitable  F.  Ins.  Co.  187,  648. 
Kelly  V.  Commonwealth  Ins.  Co.  461, 462. 

V.  Home  Ins.  Co.  672,  689. 

V.  Indemnity  F.  Ins.  Co.  293. 

V.  Troy  Fire  Ins.  Co.  37,  118, 170, 

316. 

V.  Wor'  ester  Mut.  F.  Ins.  Co.  684. 

Kennebec  '^'^ .  v.  Augusta  Ins.  &  Banking 

Co.  39,  308,  468. 
Kennedy  v.  Insurance  Co.  711. 
V.  St.  Lawrence  Co.  Mut.  Ina. 

Co.  92,  240,  281. 
Kenniston  v.   Merrimack  Co.  Mut.  Ins. 

Co.  383. 
Kenton  Ins.  Go.  v.  dhea  &  O'Connell,  62, 

464. 
Kentucky  &  Louisville  Mut.  Ins.  Co,  v. 

Southard,  89,  493. 
Kent  V.  Liverpool   lic   London   Ins.   Co. 

697. 
Kern  v.  South  St.  Louis  Mut.  Ins.  Co. 

291,  342. 
Kernnchan  v.  Now  York  Bowery  F.  Ins. 

Co.  175,  221,  470,  621,  703. 
Kctchum  v.  Protection  lus,  Co.  166,  384, 

493,  494.  740. 
Keteltas  v.  Coleman,  209. 
Kibbe  r.  Hamilton  Mut  Ins.  Co.  645. 
Kill  V.  Hollister,  106. 
Killips  T.  Putnam  F.  Ins.  Co.  395,  416, 

631,  632. 
Kimball  v.  .<£tna  lus.  Co.  842. 

v.  Hamilton  Fire  Ins.  Co.  621,708. 

V.   Howard  Fire   Ins.   Co.    268, 

434,  435. 
King  v.  Preston,  376. 
v.  Prince  Edw.  Co.  Mut.  Ins.  Co. 

661. 

V.  State  Mut.  Ins.  Co.  619,  621. 

Kingsley  v.  New  England  Mut.  F.  Ins. 

Co.  161,  182,  409,  741. 
Kingston  Mut.  Ins.  Co.  v.  Clark,  143. 
Kip  v.  Receivers'  Mut.  Ins.  Co.  619. 
Kitts  V.  Massasoit  Ins.  Co.  79,  139. 
Klein  v.  Franklin  Ins.  Co.  280,  494,  616. 
Knorr  v.  Home  Ins.  Co.  318. 
Knuzzo  V.  Am.  Exchange  F.  Ins.  Co.  189, 
Kohn  V.  Louisiana  Ins.  Co.  491. 
Kouniz  V.  Hannibal  Sav.  <fe  Ins.  Co.  270. 
Korn  V.  Mutual  Assurance  Society,  881. 
Kreutz  v.  Niagara  Dist.  Mut.  F.  Ins.  Co. 

707. 
Kuntz  V.  Niagara  Dist.  F.  Ins.  Co.  86. 
Kunzze  v.  American  Exchange  Fire  Ins. 

Co.  200,  247. 


18 


TABLE   OF  CASES. 


Lackey  v.  Georgia  Home  Ins.  Co.  465. 
Lafayette  Ins.  Co.  v.  Frenci.,  300. 
Laidlaw  v.  Lond.  Lit.  &  Globe  Ins.  Co. 

178,  680. 
Laniotte  v.  Hudson  River  Fire  Ins.  Co. 

471. 
Lampkin  v.  Ontario  Marine  &  Fire  Ins. 

Co.  410. 
V  Western  Assurance  Co.  166, 

386,  496. 
Lancey  v.  Phoenix  F.  Ins.  Co.  678. 
Lane  v.  Maine  Mut.  Fire  Ins.  Co.  66, 491. 
Laugel  y.  Mutual  Ins.  Co.  of  Prescott, 

167. 
Lappin  v.  Charter  Oak  F.  &  M.  Ins.  Co. 

82,  236.  748. 
Laurent  v.  Chatham  Fire  Ins.  Co.  211. 
Lawless  v.  Tennessee  Marine  &  Fire  Ins. 

Co.  673. 
Lawrence  v.  Holyoke  Ins.  Co.  682. 

V.  McCready,  606. 

V.  Nelson,  606. 

V.  St.  Marks  Fire  Ins.  Co.  869. 

Lazare  t.  Pbcenix  Ins.  Co.  291. 
Leadbetter  v.  ^Etna  Ins.  Co.  164. 
Learv  v.  Blanchard,  49,  363. 
Leathers  v.  Insurance  Co.  634. 
LeClaire  v.  Crapser,  874. 
Leeds  v.  Clieetham,  367. 
Lee  V.  Adsit,  379. 
V.  Howard  Fire  Ins.  Co.  268,  324, 

469,  676,  693. 
Lees  V.  Whitely,  210. 
Leggett  V.  ^tna  Ins.  Co.  829,  887,  618. 
Leiber  v.  Liverpool,  Lond.  &  Globe  Ins. 

Co.  574. 
Leonarda  v.  Phoenix   Assurance  Co.  of 

London,  180. 
Le  Roy  v.  Slarket  F.  Ins.  Co.  60,  64,  103, 

106. 

V.  Park  F.  In&  Co.  103,  664. 

Lester  v.  Webb,  348. 

Levi  V.  Brooklyn  F.  Ins.  Co.  492. 

Levitt  V.  Western  Marine  &  Fire  Ins. 

Co.  421. 
Levy  v.  Baillie,  299. 
Lewis  V.  Monmouth  Mut.  Fire  Ins.  Co. 

290,  523,  706. 
V.  Springfield  Fire  &  Marine  Ins. 

Co.  592. 
Lexington  Life,  Fire  <&  Marine  Ins.  Co.  v. 

Page,  245. 
Liberty  Hall  Association  v.  Honsatonic 

Mut.  F.  Ins.  Co.  93,  285, 
Liddle  v.  Market  Fire  Ins.  Co.  472,  678, 

783. 
Liebcnstein  v.  ^tna  Ins.  Co.  737. 

— V.  Baltic  F.  Ins.  Co.  737. 

Lightbody  v.  North  American  Ins.  Co. 

34,  35,  192,  278,  406. 
Lindsay  t.  Niagara  District  Mut.  F.  Ins. 

Co.  86,  707. 


Lindsay  v.  Union  Mut.  Firo  Ins.  Co.  92, 
241. 

Lingle  v.  National  Ins.  Co.  605. 

Liscom  y.  Boston  Mut.  F.  Ins.  Co.  213, 421. 

Litchfield  v.  Dver,  604. 

Liverpool  A  Lond.   Ins,  Co.  t.  Massa- 
chusetts, 814. 

Loehner  y.  Home  Mut.  Ins.  Qo.  260,  267, 
469.  676. 

Lomas  y.  British  Am.  Ass.  Co.  848. 

London  Assurance  Co.  y.  Buckle,  148. 

y  Sninsbury,  618. 

,  4c.  Railway  Co.  y.  Glyn,  826, 

Long  y.  Pennsylvania  Ins.  Co.  604,  665. 

Longdale  v.  Afason,  689. 

Longhurst  y.  Conway  Fire  Ins.  Co.  96, 
97,  167,  283,  248,  266,  890,  614,  641. 

y.  Star  Ins.  Co.  868,  393,  667. 

Long  Pond  Mut.  Fire  Ins.  Co.  y.  Hough- 
ton, 116,636. 

Lorillard  F.  Ins.  Co.  y.  McCuHoch,  105, 
653. 

Loring  y.  Manufacturers'  Ins.  Co.  68, 580, 
748. 

Lothroo  V.  Greenfield  Stock  «fe  Mut.  Fire 
Ih=>.  Co.  540. 

Loud  y.  Citizens'  Mut.  Ins.  Co.  676,  718. 

Louisiana  Mut.  Ins.  Co.  y.  New  Orleans 
Ins.  Co.  716. 

Lounsbury  v.  Protection  Ins.  Co.    146, ' 
512,  518,  610,  611,  666. 

Lovejoy  y.  Augusta  Mut  F.  Ins.  Co.  268. 

Lowell  y.  Middlesex  Mut.  Ins.  Co.  249, 
743. 

Lowene  v.  American  Firo  Ins.  Co.  847. 

Lucas  y.  Jefferson  Ins.  Co.  302. 

Luce  V.  Dorchester  Mut.  F.  Ins.  Co.  296, 
662,  691,  696. 

Luciani  v.  American  Ins.  Co.  674. 

Ludwig  y.  Jersey  City  Ins.  Co.  276. 

Luling  y.  Atlantic  Mut.  Ins.  Co.  245,  399. 

Lungstrass  v.  German  Ins.  Co.  2ol. 

Lycoming  County  Mut.  Ins.  Co.  v.  Mitch- 
ell, 137,413,660,  696,  719. 

• V.  Sailer, 

63,294,476. 

y.  Schol- 

lenberger,  46,  406,  485,  506,  6'23. 

-y.Schref- 


fler,  272,  288,  289,  748. 


■  y.  Upde- 


graff,  184,  412,  624,  735. 
Lyman  y.  Bonney,  610. 
y.  State  Mut.  Ins.  Co.   85,  169, 

292. 
Lynch  v.  Dalzell,  128. 
Lyun  V.  Burgoyne,  207,  634. 
Lyon  V.  Commercial  Ins.  Co.  174, 669. 


Macarty  v.  Commercial  Inn.  Co.  68,  278, 
860. 


it 


" 


TABLE  OP  CASES. 


19 


it 


Macnmber  v.  Cambridge  Mut.  F.  Ins.  Co. 

62. 

V.  Howard  F.  Ina.  Co.  613. 

Madison  Ins.  Co.  v.  OriflSn,  108. 
Madsdcn  t.  Phoenix  F.  Ina.  Co.  627,  699. 
Moguire  v.  Liverpool  <fe  Loudon  Fire  & 

Life  Ina.  Co.  160. 
Maine  Mut.  Marine  Ins.  Co.  v.  Neal,  121. 
'■ V.    Swanton, 

649. 
Malleable  Iron  Works  t.  Pliceniz  Ina.  Co. 

41. 
Manhattan  Ins.  Co.  v.  Stoin  &  Zang,  81, 

463,  628. 

V.  Webster,  361,  668. 

Manley  v.  Ins.  Co.  ^f  N.  A.  60,  80,  140. 
Mann  v.  Herkimer  Ct.  Mut.  Ins.  Co.  739. 

V.  Western  Asjui  ince  Co.  167,  169. 

Manufacturers*  Ins.  C(    v.  Loud,  627. 
Marbiehcad  Mut.  Fiva  Ins.  Co.  v.  Hay- 
ward,  116. 
V.  Un- 

derwood,  116,  635. 
Marcliesseau  v.  Merchants'  Ins.  Co.  212, 

300. 
Marine  Bank  t.  Clements,  648 . 

V.  Vail,  648. 

Marion  v.  Great  Republic  Ins.  Co.  302. 
Markle  v.  Niagara  District  Mut.  F.  Ins. 

Co.  262. 
Marks  y.  Hamilton,  861. 
Marshall  v.  Columbian  Mut.  Ins.  Co.  637. 
Martin  v.  Home  Ins.  Co.  106. 
V.  Penobscot  Mut.  Fire  Ins.  Co. 

700. 
Maryland  F.  Ins.  Co.  v.  Whiteford,  294, 

405,  617. 
Mason  v.  Agricultural  Mut.  Ass.  of  Can. 

261,  302. 

V.  Franklin  Fire  Ins.  Co.  663,  727. 

V.  Hartford  Fire  Ins.  Co.  601. 

V.  Harvey,  516. 

V.  Louisiana  State  Marine  &  Fire 

Ins.  Co.  492. 

V.  Sainsbury,  618. 

Masters  v.  Madison  Co.  Mut.  Ins.  Co.  36, 

63,  240,  249. 
Masury  v.  South  worth,  210. 
Matter  of  People's  Mut.  Eq.  F.  Ins.  Co. 

122,  123. 

the  State  Fire  Ins.  Co.  348. 

Matthews  v.  Howard  Ins.  Co.  403. 
Mutthcwson  v.  Western  Assurance 


Co. 


222. 


May  V.  Buckeye  Mut.  Ins.  Co.  104, 414, 690. 
Mayall  v.  Mitford,  668. 
Mayhew  v.  Phoenix  Ins.  Co.  318,  511. 
Mayor,  Aldermen,  Ac.  v.  Wood,  626. 
Mayor  of  Now  York  v.  Brooklyn  Ins.  Co. 

358,  474,  696,  721. 
v.    Exchange    Fire 

Ins.  Co.  289,  293,  340,  356,  698. 


Mayor  of  Now  York  v.  Hamilton  Fire 
Ins.  Co.  185,  341,  877,  392,  894,  478, 
696,  616. 

McAllister  v.  Commonwealth  Ins.  Co.  819. 

V.  Pennsylvania  &  Common- 
wealth Ins  Co.  319. 

McAnnally  v.  Somerset  Mut.  F.  Ins.  Co. 
688. 

McComber  v.  Granite  Ins.  Co.  286. 

McConnell  v.  Delaware  Ins.  Co.  150,  663. 

McCraig  v.  Quaker  City  Ins.  Co.  216. 

McCuUoch  v.  Indiana  Mut.  F.  Ins.  Co.  61, 
881. 

McDonnell  v.  Beacon  F.  &  L.  Ass. 
318. 

McDowell  v.  Carr,  169,  247. 

McEvcrs  V.  Lawrence,  83,  407. 

McEwen  v.   Montgomery  Co.  Mut. 
Co.  420. 

McOivney  v.  Phoenix  Ins.  Co.  349. 

Mclntyre  v.  Preston,  47 1 ,  632. 

V.  Norwich  F.  Ins.  Co.  81. 

McKenzie  v.  Times  <&  Beacon  Ins. 


Co. 


Ins. 


Co. 


602. 


McLaren  v.  Hartford  Fire  Ins.  Co.  63, 79. 
McLaughlin  v.  Washington  Co.  Mut.  Ins. 

Co.  212,  406,  513. 
McLoughlin  v.  lloyal  Exch.  Association 

Co.  169. 
McMahon  v.  Portsmouth  Ins.  Co.  422, 423. 
McMasters  v.  Westchester  Co.  Mut.  Ins. 

Co.  701. 
McPherson  v.  Proudfoot,  378. 

v.  St.  Lawrence  Ins.  Co.  307. 

Mead  v.  Northumberland  Ins.  Co.  165, 

281,  673. 
Meadowcraft  v. 

188. 
Meclianics'  Fire  Ins. 

202. 
Medical  College  of  Alabama  v.  Muldon, 

628. 
Llellen  v.  Hamilton  F.  Ins.  Co.  183,  496. 
Menzies  v.  North  British  Ins.  Co.  180. 
Merchants'  Bank  v.  McCall,  548. 
Merchants'  Ins.  Co.  v.   Edmond  Daven- 
port &  Co.  186. 

V.  Masange,  374. 

Merchants  &  Mauufucturers'  Ins.  Co.  T. 

Currun,  164. 


Standard  F.  Ins.  Co.  61, 
Co.  V.  Nicols,  144, 


Mut.    Ins. 

Co.  V.  Washington  Mut.  Ins.  Co.  177, 

286,  606,  692,  086. 
Merchants'  Mut.  Ins.  Co.  v.  Leeds,  603. 

V.  Rey,  546. 

Merrinm  v.  Middlesex  Mut.  Fire  Ins.  Co. 

833. 
Merrick  v. 

207. 

V, 

Merritt  v. 


Germania  Fire  Ins.  Co.  187, 


Provincial  Ins.  Co.  680. 
Farmers  &  Mechanics' 
Fire  Ins.  Co.  646. 


Mut. 


20 


"•ABLE  OP  CASES. 


i 


Merritt  V.  Nlagnrn  Mut.  Fire  Ins.  Co.  438. 

Miall  V.  Western  Ins.  Co.  140. 

Michni'l  V.  Mutual  Ins.  Co.  of  Nashville, 

«>2,  271,  807,  702. 
Miltlraay  v.  Folp;ham,  366. 
Millaudon  t.  Atlantic  Ins.  Co.  107,  823. 

V.  Now  Orleans  Ins.  Co.  691. 

V.  WcBtern  Marine  <t  Fire  Ins. 

Co.  696. 
Miller  v.  Tate,  40. 

V.  Western  Farmers'  Mnt.  Ins.  Co. 

170,  183,686. 
Milligan  v.  Equitable  Ins.  Co.  364. 
Miltenberijer  v.  Beacom,  871,  372. 
Miner  v.  Judson,  643. 

V.  Pbjenix  Ins.  Co.  64. 

Mississippi  Mut.  Ins.  Co.  v.  Ingram,  210. 
Missouri,  State  of,  t.  Matbews,  366. 

State   Mut.   Fire    Ins.    Co.  v. 

Spore,  497. 
Mitcliell  V.  Home  Ins.  Co.  611,  684. 

V.  Lycoming  Mut.  Ins.  Co.  48, 

401.  449,  663,  660. 
Mix  V.  Hotchkiss,  3!>6. 
Moadinj^er  v.  Mechanics'  Fire  Ins.  Co. 

277,  299,  726. 
Moliere  v.  Pennsylvania  Ins.  Co.  467. 
Monmouth  Co.  Ins.  Co.  v.  Hutchinson  et 

al.  622. 
Monmouth  Mut.  F.  Ins.  Co.  t.  Lowell, 

128. 
Montreal  Assurance  Co.  v.  McGillivray, 

461. 
Moore  v.  Protection  Ins,  Co.  280, 297, 301, 

611. 
Morrell  v.  Irving  Fire  Ins.  Co.  219.  669. 
Morrison  v.  Tennessee  M.  <t  F.  Ins.  Co.  66, 

636. 
Morris  v.  Summerl,  33. 
Motley  V.  Manufacturers'  Ins.  Co.  740. 
Mouufl  City  Mut.  F.  &  M.  Ins.  Co.  v.  Cur- 
ran,  465. 
Mobnt  Vernon  Manf.  Co.  v.  Summit  Co. 

Mut.  F.  Ins.  Co.  76. 
Mueller  v.  Putnam  F.  Ins.  Co.  405,  609. 
Mulrey  v.  Shawmut  Mut.  F.  Ins.  Co.  484. 
Mulvey  v.  Gore  Distr.  Mut.  F.  Ass.  526, 

686,  707. 
Muma  V.  Niagara  Distr.  Mut.  Ins.  Co. 

260. 
Murdock  v.  Chenango  Co.  Mnt.  Ins.  Co. 

60,161,334,  711,  716. 
Murphy  v.  Patapsco  Ins.  Co.  607. 

V.  People's  Equitable  Alut.  Fire 

Ins.  Co.  258,  273. 
Mussey  v.  Atlas  Mut.  Ins.  Co.  432,  433. 
Mutual  Assurance  Co.  v.  Byrd,  110. 
V.  Mahon,  630. 


—  V.  Stone,  381. 

—  V.  Watts,  380. 


Mutual  Ins.  Co.  v.  Deale,  177,  272,  606, 
652,  718,  734. 


Mutual  Ins.  Co.  v.  Supervisors  of  Erie 
County,  626. 

Mutual  Lif'e  Ins.  Co.  of  New  York  v.  Wag- 
ner, 668. 

Mutual  Safety  Ins.  Co.  t.  Hone,  203. 

Mygatt  V.  N'ew  York  Protection  Ins.  Co. 
331. 

Nash  V.  Union  Mnt.  Fire  Ins.  Co.  688. 

Nathan  v.  Whitlock,  606. 

National  Fire  Ins.  Co.  v.  Crane,  138,  286, 

441,  666. 
Nat.  Mut.  F.  Ins.  Co.  v.  Pnrsell,  812. 
^— V.   Yeomans,   127, 

402. 
Nave  v.  Home  Mut.  Ins.  Co.  596. 
Neely  v.  Onondaga  County  Mut.  Ins.  Co. 

223. 
Nelson  v.  Eaton,  368. 

v.  Wellington,  648. 

Neve  v.  Columbia  Ins.  Co.  419,  650. 
Neville  v.  Merchants  ±  Manufacturers' 

Mut.  Ins.  Co.  666. 
Nevins  v.  Rockingham  Fire  Ins.  Co.  216, 

319,  6»8,  741. 
Newby  v.  Reed,  202. 
Newcastle  F.  Ins.  Co.  v.  MacMornn,  229. 
Neweomb  v.  Cincinnati  Ins.  Co.  624. 
New  England  Fire  &  Marine  Ins.  Co.  y. 

,  154. 

V.  Schettler, 

48,  450,  665. 


V.  Wotmore, 

100,  367,  576,  682,  687.  747. 
New  England  Mut.  F.  Ins.  Co.  v.  Belknap, 

111,  281,  634. 

V.  Butler,  152, 634. 

Newhall  v.  Union  Mut.  Fire  Ins.  Co.  147, 

260. 
New  Hampshire  Mut.  Fire  Ins.  Co.  y. 

Walker,  495. 
V.   Hunt, 

115,496. 
— —    y.   Rand, 

223,  281. 
Newman  v.  Springfield  F.  «k  M.  Ins.  Co. 

66,  106,  611,  663. 
Newmark  v.  London  A  Liverpool  Life  & 

'    Fire  Ins.  Co.  146,  287,  630. 
New  York  Belting  A  Packing  Co.  y.  Wash- 
ington Fire  Ins.  Co.  185. 
New  York  Bowery  Ins.  Co.  v.  New  York 

Ins.  Co.  173,  670. 
New  York  Central  Ins.  Co.  y.   Watson, 

456. 
v.  Nat'l  Prot. 

Ins.  Co.  87,  40,  409,  481,  495,  670. 
New  York  Equitable  Ins.  Co.  v.  Langdon, 

611,  666. 
New  York  Exchange  Co.  v.  De  Wolf,  548. 
New  York  Fire  Ins.  Co.  v.  Delevan,  655. 
V.  Donaldson,  830. 


« 


TABLE  OF  CASES. 


21 


4» 


New  York  Gas  Light  Co.  t.  Mechanics' 

Fire  Ins.  Co.  466,  727. 
New  Yoric  Ice  Co.  v.  North  Western  Ins. 

Co.  602,  604,  666,  666. 
Niagara  District  Mut.  F.  Ins.  Co.  t.  Lewis, 

6*26. 
Niagara  Fire  Ins.  Co.  v.  De  Graff,  186, 

663,  694. 
Nlblo  V.  North  American  Ins.  Co.  180, 

214,  361,  633. 
Nichols  T.  Rensselaer  Co.  Mut.  Ins.  Co. 

108. 
^—-  V.  Fayetto  Mut.  Fire  Ins,  Co.  287, 

442,  641,  696. 
Nicolet  V.  Insurance  Co.  305. 
Nicol  V.  American  Ins.  Co.  36,  89,  710. 
Nicols  V.  IJaxter,  376. 
Noad  V.  Provincial  Ins.  Co.  436. 
Noonan  v.  Hartford  Fire  Ins.  Co.  166, 166. 
Norcross  v.  Insurance  Co.  62. 
North  American  F.  In.i.  Co.  v.  Throop, 

106,  179,  738. 
North  Berwiclc  Co.  v.  New  England  F.  ds 

M.  Ins.  Co.  47,  186.  341,  706. 
Northvup  V.  Mississippi  Valley  Ins.  Co. 

276,  296. 
Northwestern  Ins.  Co.  v.  Atkins,  627. 
•^-^— — — — — V.  Phoenix  Oil  & 

Candle  Factory,  388. 
Norton  v.  Rensselaer  &  Saratoga  Ins.  Co. 

616. 
Norwich  F.  Ins.  Co.  v.  Boomer,  379,  662. 
Noyos  V.  Washington  County  Mut.  Ins. 

Co.  517, 
Nuto  V.  Hamilton  Ins.  Co.  162. 

Oakman  v.  Dorchester  Mut.  F.  Ins.  Co. 

361. 
Obermeyer  v.  Globe  Mut.  Ins.  Co.  463. 
Ogden  V.  Montreal  Ins.  Co,  360. 
Ogilvie  V.  Knox  Ins.  Co.  608. 
Ohio  Ins.  Co.  v.  Nunnemacher,  608. 
Ohio  Mut.  Ins.  Co.  t.  Marietta  Woolen 

Factory,  114. 
Oldmnn  V.  Berwick,  162. 
Oliver  v.  Liverpool  &  London  L.  &  F. 

Ins.  Co.  627. 
Olmstead  v.  Iowa  Mut.  Ins.  Co.  261. 
O'Neil  V.  Buffalo  Fire  Ins.  Co.  164,  612, 

671. 
Orguerre  v.  Lnling,  375. 
Oriental  Bank  v.  Tremont  Ins.  Co.  213. 
Orrell  v.  Hampden  F.  Ins.  Co.  69,  146. 
Osgood  v.  Layton,  662. 

V.  O^den,  662. 

■  V.  Toplitz,  644. 

Osser  V.  Provincial  Ins.  Co.  463. 

Otis  V.  Harrison,  541. 

Ottawa  Forwarding  Co.  v.  Liverpool  «fe 

London  «fe  Globe  Ins.  Co.  346. 
Owen  v.  Farmers'  Joint  Stock  Ins.  Co.  62, 

262,  528. 


Pacific  Ins.  Co.  v.  Soule,  627. 
I'acilic  Mut.  Ins.  Co.  v.  Guse,  128. 
Packard  v.  Agawam  Mut.  F.  Ins.  Co.  262. 
Paddleford  v.  Providence  Mut  Fire  lua. 

Co.  86,  684. 
Pai..i  T.  Medina  Mut.  Fire  Ins.  Co.  193. 
i'uris  T.  Gilham,  466. 
Park  V.  Phconix  Ins.  Co.  802,  865,  437. 
Parker  v.  Bridgeport  Ins.  Co.  153,  725. 

v.  Eagle  Fire  Ins.  Co.  218. 

Parks  V.  General  Interest  Ass.  Co.  323. 
Parry  v.  Ashley,  367. 

Patrick  v.  Farmers'  Ins.  Co.   184,  891, 

412. 
Patten  y.  Merchants  &  Farmers'  Mut. 

Fire  Ins.  Co.  264,  267. 
Patterson  v.  Powell,  330. 

v.  Royal  Ins.  Co.  465. 

Patton  V.  Ins.  (Jo.  307. 
Paul  V.  Virginia,  313. 
Peabody  v.  Washington  Co.  Mut.  Ins.  Co. 

496,  742. 
Peacock  v.  New  York  Life  Ins.  Co.  477. 
Pechner  v.  Plioenix  Ins.  Co.  316,  468. 
Peck  v.  Now  London  Mut.  Ins.  Co.  429, 

637. 
Peddle  v.  Quebec  Fire  Ins.  Co.  211. 
Penf'ur  v.  American  Mut.  Ins.  Co.  426. 
I'enley  v.  Beacon  Ins.  Co.  393, 463. 
Pennsylvania  Ins.  Co.  v.  Bowman,  264. 

■ V.  Gottsraan,  259. 

Pentz  T.  iEtoa  Ins.  Co.  of  New  York, 

690. 
People  V.  Beigler,  130. 

(ex  rel.  Glens  Falls  Ins.  Co.)  v. 

Ferguson,  627. 

v.  Hughes,  160,  290. 

V.  Rensselaer  Ins.  Co.  609. 

V.  State  Ins.  Co.  366. 

V.  Thurber,  806. 

People's  Mut.  Equitable  Fire  Ins.  Co.,  in 

matter  of,  122,  123. 
People's  Equitable  Mut.  Fire  Ins.  Co.  v. 

Arthur,  116,498. 
V.  Babbitt, 

122. 
People's  Mut.  Ins.  Co.  v.  Westcott,  119. 
People's  Ins.  Co.  v.  Spencer,  49,  291,  342, 

607. 
People's  F.  Ins.  Co.  (State  ex  rel.)    v. 

Parker,  628. 
Peoria  F.  &  M.  Ins.  Co.  v.  Anapow,  451, 

736,  738. 

V.  Botto,  169. 

V.  Frost,  621. 

v.  Hall,  329, 377, 


893,  707,  735. 


V.  Hervey,  677. 

V.    Lewis,    203, 

410,  434,  498,  499,  702,  716.  730. 
—  -  V,  Perkins,  104, 

293,  609,  689. 


22 


TABLE  OF  CASES. 


II 


Peoria  M.  <fc  F.  Ins.  Co.  v.  "Whitdiill,  168, 
390,  503,  619, 

V.  Wilson,  218. 

Percival  v.  Maine  Mut.  Marine  Ins.  Co. 

551,  723. 
Perkins  v.  Washington  Ins.  Co.  191. 
Perry  Co.  Ir.d.  Co.  v.  Stewart,  63,  84,  231. 
Perry  v.  Lorillard  F.  Ins.  Co.  84. 

V.  Merchants'  Ins.  Co.  132. 

V.  Newcastle  District  Mut.  Fire  Ins. 

Co.  208. 
Peterson  v.  Mississippi  Valley  Ins.  Co.  600. 
Peychaud  v.  Hood,  610. 
Phelps  V.  Gebhard  Fire  Ins.  Co.  356,  575. 
Philadelphia  Association  v.  Wood,  311. 
Philadelphia  Fire  &  Life  Ins.  Co.  v.  Mills, 

186. 
Philbrook  v.  New  England  Mut.  F.  Ins. 

Co.  90,  224,  428,  429. 
Philips  V.  Merrimack  Mut.  F.  Ins.  Co.  64, 
130,  668,  741. 

V.  Protection  Ins.  Co.  297,  408, 

477,  615. 

V.  Perry  County  Ins.  Co.  480. 

Phillips  V.  Knox  Co.  Mut.  Ins.  Co.  634. 
Phoenix  Fire  Ins.  Co.  v.  Philip,  278. 
Phoenix  Ins.  Co.  v.  Favorite,  327,  737. 
V.  Gurnee,  564. 

V.  Hamilton,  17!>,  362. 

V.  Hofflieimer,  669. 

V.  Lawrc  ice,  45,  74, 269, 

288,  506,  615. 

V.  Munday,  303. 

V.  Taylor,  521,  616. 

Pierce  v.  Empire  Ins.  Co.  101,  650,  720. 

V.  Nashua  F.  Ins.  Co.  62,  82,  141, 

748. 

Pirn  V.  Reid,  231,  670. 

Pindar  v.  Continental  Ins.  Co.  690. 

V.  Kings  County  Ins.  Co.  698. 

V.  Resolute  F.  Ins.  Co.  of  N.  Y. 

476. 
Pinkham  v.  Morang,  638. 
Pino  V.  Merchants'  Mut.  Ina.  Co.  486,  508. 
Pitney  v.  Glens  Falls  Ins.  Co.  83, 455,  531. 
Pluhto  V.  Merchants  <&  Manufacturers'  Ins. 

Co.  378. 
Plntt  V.  Gore  District  F.  Ins.  Co.  148. 
Plumb  V.  Cattaraugus  Co.  Mut.  Ins.  Co. 

94,  242. 
Pollard  V.  Somerset  Mut.  F.  Ins.  Co.  67, 

679. 
Pontifex  v.  Bignold,  315, 
Portage  County  Mut.  Ins.  Co.  v.  Stukey, 

098. 
V.    West, 

386. 
Post  V.  JEtna  Ins.  Co.  47,  210,  485,  523, 

677. 
—    V.  Hampshire  Mut.  Ins.  Co.  657. 
Potter  V.  Ontario  &  Livingston  Count}' 
Mut.  Ins.  Co.  420. 


Power  V.  Ocean  Ins.  Co.  88, 

Pratt  V.  Atlantic  <fc  l^t.  Lawrence  Rail- 
road, 362. 

Prieger  v.  Exchange  Mut.  Ina.  Co.  96. 

Priest  V.  Citizens'  Mut.  Fire  Ins.  Co.  705. 

Protection  Ins.  Co.  v.  Hall,  90,  175,  362, 
693, 

. V,  Harmer,  251,  282, 

283,  328,  516,  661,  637,  664,  714. 

V.  Pherson,  165, 

V,  Wilson,  743. 


Providence  County  Bank  v.  Benson,  870, 
Providence  F,  «fe  M,  Ins.  Co.  v.  Murpiij', 

402, 
Provincial  Ins.  Co.  v.  ^tna  Ins.  Co.  387. 
Pupke  V.  Resolute  Fire  Ins.  Co.  581, 

Quebec  Firo  Assurance  Co,  v,  St.  Louis, 
620. 

Rafael  v.  Nashville  Marine  tfeF?  'e  Ins.  Co. 

324,  728. 
Raflferty  v.  New  Brunswick  Fire  Ins.  Co, 

611,  GOO. 
Ramsaj^  Woolen  Cloth  Manufacturing  Co, 

v.  Mutual  Fire  Ins.  Co.  428,  495. 
Rathbone  v.  City  Fire  Ins.  Co.  265,  341, 

593,  704,  706. 
Real  Estate  Mut.  Ins.  Co.  v.  Rocsle,  194. 
Receivers  of  Globe  Ins.  Co,  561,  >03. 
Reed  v.  Lukens,  478. 
Reeve,  Case  <fe  Co.  v.  Phoenix  Ins.  Co. 

691. 
Rcgn'er  v.  Louisiana  State  Marine  J-  Fire 

Ins.  Co.  149,  300. 
Reid  v.  Gore  District  Mut.  Firo  Ins.  Co. 

336. 
Rex  V.  Doran,  276. 
—  V.  Insurance  Companies,  69, 221, 254, 

353,  665. 
Reynolds  v.  Commerce  F.  Ins.  Co.  189. 
V.  Mutual  V.  Ins.  Co.  of  Cecil 


Co.  82,  275. 

v.  Pitt,  208. 

v.  State  Mut. 


Ins.  Co.  630. 


Rhinehart  v.  Alleghany  Co.  Mut.  Ins.  Co. 
111. 

Rice  v.  Provincial  Ins.  Co.  478,  525,  094, 

v.  Tower,  66,  67,  075. 

Richards  v.  Protection  Ins.  Co.  280,  612. 

Richardson  v.  Can.  West  Farm.  M.  <ii:  S, 
Ins  Co.  260,  626. 

v.  Maine  Ins.  Co.  256. 

Riehmondville  Union  Semitiary  v.  Hamil- 
ton Mut.  Ins.  Co,  0."),  2(14. 

Riddlesbarger  v.  Hartford  Ins.  Co.  304. 

Ripley  v.  /Etna  Ins.  Co.  388,  392,  474, 
666,  720.  724,  744. 

Rising  Sun  Ins.  Co.  v.  Slaughter.  211, 
448,  607. 

Ritter  v.  .Sun  Slut.  Ins.  Co.  147. 

ll\x  v,  Mut.  Ins,  Co,  306,  408,  633, 


I 


TABLE  OP  CASES. 


23 


Roach  V.  New  York  &  Erie  Ins,  Co.  392. 
Roberts  v.  Chenango  County  Mut.  Ins. 

Co.  151. 

V.  Traders'  Ins.  Co.  369. 

Robinson  v.  Mercer  County  Mut.  Fire  Ins. 

Co.  ill,  682. 
Roche  V.  Ladd,  311. 
Rockingham  Mut.  Firo  Ins.  Co.  v.  Bosher, 

620. 
Rockwell  V.  Hartford  Fire  Ins  Co.  459. 
Rodi  V.  Rutgers  Fire  Ins.  Co.  504. 
Rollins  V.  Columbian  Mut.  Fire  Ins.  Co. 

6Y,  152,  741. 
Roots  v.  Cincinnati  Ins.  Co.  444,  473. 
Roper  V.  Lendon,  108,  620. 
Ross  V.  Commercial  U.  Ass.  Co.  293,  J02. 
Roth  V.  City  Ins.  Co.  91,  714. 
RoumaRO  v.  Mechanics'  Firo  Ins.  Co.  163, 

407,  700. 
Routledge  v.  Burrell,  162. 
Rowe  T.  London  &  Lancas.  Fire  Ins.  Cu. 

102. 
Rowley  v.  Empire  Ins.  Co.  60,  261,  269, 

461. 
Ru98  V.  Mutual  Fire  Ins.  Co.  of  Clinton, 

81,  270. 
Ryder  v.  Commonwealth  Fire  Ins.  Co.  560. 
V.  Missouri  State  Mut.  Ins.  Co.  44, 

227. 

Sadlers  County  v.  Badcock,  128,  349. 

Salmon  v.  Richardson,  317. 

Salnis  V.  Rutger's  Firo  Ins.  Co.  98. 

Salvin  v.  Liuigston,  247. 

Samble  v.  Mechanics'  Fire  Ins.  Co.  490. 

Sanborn  v.  Fireman's  Ins.  Co.  49,  291, 

464. 
Sanders  v.   Hillsborough  Ins.   Co.  266, 

506,  660,  699. 

V.  Winship,  395.  \ 

Sandford  v.  Mechanics'  Mut.  Fire  Ins.  Co. 

182,  584. 

V.  Trust  Fire  Ins.  Co.  192. 

Sands  v.  Anuesly,  127. 

'    Tlill,  126,  126,  159,  400. 

V.  Lilienthal,  544. 

V.  Sanders,  121,  127, 171,  662. 

V.  Shooiiiftker,  121.  127,  171,  561. 

V.  St.  John,  542,  609. 

V.  Sweet,  125,  126. 

Siirsfiold  V.  Metropolitan  Ins.  Co.  106, 235. 
Sattcrtiiwaito  v.  Mutual   Beneficial  lus. 

Co.  174. 
Savage  v.  Long  Island  Ins.  Co.  84,  380. 

—  V.  Medburv.  537,  661. 

Sayles  v.   North  "Western  Ins.  Co,  183, 

241,714,  715. 
Sayrcs  v.  Hartford  Firo  Ins.  Co.  .'i67. 
Sciincffer  v.  Missouri  Homo  Ins.  Co.  609, 

610. 
Schaetzel  v.  Ocruiantown  Farmers'  Mut. 

Ins.  Co.  609. 


Schenck  v.  Mercer  Co.  Mut.  Ins.  Co.  86 

282,  409,  427,  429. 
Schmidt  v.  New  York  Union  Ins.  Co.  149. 
V.  Peoria  M.  &  F.  Ins.  Co.  292 

344,  474,  720,  722. 
Schroeder  v.  Keystone  Ins.  Co.  388. 
Scottish  Union  Ins.  Co.  v.  Mackintosh,367. 
Scott  V.  Avery,  107. 

V.  Eagle  Ins.  Co.  244. 

V.  Home  Ins.  Co.  294. 

V.  Irving,  480. 

V.  Johnson,  648. 

V.  Niagara  District  Mut.  Ins,  Co,  707, 

V.  Phoenix  Assurance  Co.  107,  162. 

V.  Quebec  Fire  Ins.  Co,  229. 

Scriptur  v.  Lowell  Ins.  Co.  591. 
Security  Ins.  Co.  v.  Bronger,  303,  653. 

V.  Fay,  456.  530. 

V.  Kentucky  M.   <fe    F. 

Ins.  Co.  466,  600. 
Semmes  v.  City  Fire  InA.  Co.  of  Hartford, 

313,  394,  395. 
Sergent  v.  Franklin  Ins.  Co.  655. 
Sexton  V.  Montgomery  County  Mut.  Ins. 

Co.  89,  151,  239,  279,  422,  615,  661. 
Seymour  v.  Vernon,  373. 
Shaughnessy  v.  Rensselaer  Firo  Ins.  Co. 

114. 
Shaw  v.  Robberds,  668. 
V.  St.  Lawrence  County  Mutual  Ins. 

Co.  634. 
Shawmut  Mut.  Fire  Ins.  Co.  v.  Stevens, 

48. 
Shawmut  Sugar  Refining  Co.  v.  Hamp- 
den Mut.  Ins.  Co.  474. 
•^— V.  People's 

Mut.  Fire  Ins.  Co.  477. 
Shearman  v.  Niagara  Firo  Ins.  Co.  691, 

708. 
Sheldon  v.  Atlantic  Fire  &  Marine  Ins. 

Co.  485,  700. 
V.  Connecticut  Mut.  Life  Ins.  Co. 

483. 

•  V.  Hartford  Fire  Ins.  Co.  90,  469, 

■V.  Roseboom,  171. 
Shepard  v.  Union  Mut.  Firo  Ins.  Co.  70, 

162,  746. 
Shipworth  v.  Mut.  Assur.  Soc.  110. 
Shirley  v.  Mutual  Assnranco  Society,  381. 
Shoemaker  v.  Glons  Falls  Ins,  Co,  262, 
Shotwell  v.  Jeflerson  Ins,  Co,  72. 
Shurtleff  v.  Phenix  Ins.  Co,  463, 
Sillem  v,  Thornton,  231,  670, 
Simeral  v,  Dubuque  Mut,  Fire  Ins,  Co. 

138,  400. 
Simpson  v.  Pennsylvania  Firo  Ins.  Co. 

443. 
Sims  v.  St,4ito  Ins.  Co.  of  Ilanni'.al,  487, 

530,  601. 
Singleton  v.  Boone  Co.  Homo  Mut.  lus. 

Co.  661. 


724, 


;iii 


24 


TABLE   OF   CASES. 


SJnnlssippl  Ins.  Co,  v.  Taft,  120. 

Siter  V.  AJorrs,  323. 

Slater  Mut.  Fire  Ins.  Co.  v.  Barstow  «t 

Co.  127. 
Sloat  V.  Royal  Ins.  Co,  207,  449. 
Smith,  ex  parte,  366. 

V.  Bowditch  Mut.  Ins.  Co.  633. 

— —  V.  Cash  iDb.  Co.  8T)8. 

V.  Columbia  Ins.  Co.  249. 

V.  Empire  Ins.  Co.  41,  263,  268. 

V.  Farmers'  Mut.  Ins.  Co.  262. 

V.  Hall,  548. 

V.  Haverhill  Mut.  Ins.  Co.  619. 

V.  Ins.  Co.  92. 

T.  Mechanics  dc  Traders'  Fire  Ins. 

Co.  687,  688. 
V.  Monmouth  Mut.  Fire  Ins.  Co. 

75,  137. 

V.  Packard,  872. 

V.  Royal  Ins.  Co.  360. 

■  V.  Saratoga  Co.  Mut.  Fire  (ns.  Co. 


129,  130,  222. 
Snyder  v.  Farmers'  Ins.  <&  Loan  Co.  88. 
Sohier  v.  Norwich  Fire  Ins.  Co.  147,  696. 
Solmes  v.  Rutgers  Fire  Ins.  Co.  206. 
Solms  V.  Rutgers  Fire  Ins.  Co.  666. 
Somera  v.  Atheneum  Fire  Ass.  Co.  232. 
Somerset  Ins.  Co.  v.  McAnally,  382. 
South  Australian  Ins.  Co.  v.  Kandcll,  662. 
Southern  Ins.  &  Trust  Co.  T.  Lewis  & 

Bros.  295,  846,  664. 
Soye  V.  Merchants'  Ins.  Co.  672. 
Spitzer  v.  St.  Mark's  Ins.  Co.  459. 
Spooner  v.  Rowland,  320,  477. 
Spratlev  v.  Hartford  Ins.  Co.  631,  738. 
Springfield  F.  &  M.  Ins.  Co.  v.  Allen,  623. 
Spring  Garden  Mut.  Ins.  Co.  v.  Evans,516. 
Stacey  v.   Franklin  Fire  Ins.  Co.  416, 

417,418. 
Stanley  v.  Western  Ins.  Co.  897. 
Stark  Co.  Mut.  Ins.  Co.  v.  Hurd,  428. 
Starkweather  V.  Cleveland  Ins.  Co.  141. 
State  ex  rel.  People's  Fire  Ins.  Co.)  v. 

Parker,  628. 

of  Missouri  v.  Mathews,  866. 

State  Fire  Ins.  Co.  Matter  of,  348. 

State  Mut.  Fire  Ins.  Co.  v.  Arthur,  499, 600. 

V.  Roberts,  681. 

Stobbins  v.  Globe  Ins. Co.  86, 236, 332, 663. 
Steele  v.  Franklin  Fire  Ins.  Co.  373. 
Steinback  v.  Insurance  Co.  601. 
Steinmctz  v.  Franklin  Fire  Ins.  Co.  684. 
Stephens  v.  Illinois  Mut.  Fire  Ins.  Co.  361. 
Sterling  v.  Mercantile  Mut.  Ins.  Co.  316, 

688. 
Stettiner  v.  Granite  Ins.  Co.  166, 497. 
Stetson  V.  Insurance  Co.  508. 
V.  Massachusetts   Mut.  Ins.  Co. 

66,  84,  832. 
Stevens  v.  Phoenix  Ins.  Co.  311,  313. 
Stevenson  v.  Loudon   &  Laucatshiro  F. 

Ins.  Co.  274. 


StUlwell  V.  Staples,  326,  376, 

Stimpson  v.  Monmouth  Mut,  Fire  Ins, 

Co.  411,  747. 
St.  John's  v.  American  Ins.  Co.  403. 
y.   American  Mut.  Marine  & 

Fire  Ins.  Co.  691. 
St.  Lawrence  Mut.  Ins.  Co.  v.  Paige,  117. 
St  Louis  Ins.  Co,  v,  Glasgow,  403. 

V.  Kyle,  408,  614, 

St.  Louis  Mut.  Fire  &  Marine  Ins.  Co,  y. 

Boockler,  113,  536, 
St,  Louis  V,  Boatmen's  Ins.  &  Tr,  Co.  628. 
y.  Independent  Ins.  Co.  of  Mass. 

628. 
Stokes  V.  Cox,  681. 
Stone  y.  Elliot  Fire  Ins.  Co.  470. 
Storer  v.  Elliott  Fire  Ins,  Co.  731. 
Stout  V.  City  Fire  Ins.  Co.  of  New  Haven, 

135,  355,  890,  666,  684. 
Stratton  y.  Mutual  Assur.  Society,  1 10. 
Stringham  y.  St,  Nicholas  Ins,  Co.  140. 
Strong  V.  Manufacturers'  Ins.  Co.  66,  211, 

349,  631. 
Suffolk  Fire  Ins.  Co.  y.  Boyden,  621. 
Sullivan  v.  Massachusetts  Mut.  Fire  Ins. 

Co.  686. 
Sun  Fire  Office  y.  Wright,  179. 
Sun  Mut.  Ins.  Co.  y.  Mayor  of  New  York, 

626. 

y.  City  of  New  york,626. 

Susquehanna  Ins.  Co.  v.  Perrine,  238. 
Sussex  County  Mut.  F.  Ins.  Co.  v.  Wood- 
ruff, 197,  216, 286, 853,  498, 620,  640. 
Sutherland  y.    Society  of  the  Sun  Fire 

Office,  666. 
Suydam  v.  Columbus  Ins.  Co.  666. 
Swarascot  Machine  Co.  v.  Partridge,  214, 

223,  281,  318,  604. 
Sweeny  v.  Franklin  Ins.  Co.  362. 
Sweeting  v.  Pearce,  480. 
Swift  V.  Vt.  Mut.  Fire  Ins.  Co.  632. 
Swords  V.  Blake,  347. 
Sykes  v.  Perry  County  Mut.  Fire  Ins.  Co. 

839. 

Talamon  y.  Home  &  Citizens'  Mut.  Ins. 

Co.  680. 
Tallman  v.  Atlantic  Fire  &  Murine  Ins. 

Co.  7*?.  868. 
Tarleton  v.  Staniforth,  240. 
Tate  V.  Citizens'  Mut.  Fire  Ins.  Co.  43, 744. 
Tatem  v.  Wright,  626. 
Tayloe  v.  Merchants'  Ins.  Co.  193,  266, 

481,616. 
Tebbutts  v.  Hamilton  Mut.  Ins.  Co.  243, 

706. 
Teerpcnuing  et  al.  v.  Corn  Exchange  Ins. 

Co.  296. 
Tesson  v.  Atlantic  Mut.  Ins.  Co.  235, 664, 

607. 
Thayer  v.  Middlesex  Mut.  Fire  Ins.  Co. 

191,  467. 


TABLE  OF  CASES. 


25 


Thomas  V.  Achilles,  112,  170. 

V.  Whallon,  117,  661. 

V.  Von  Kepf,  368. 

Thompson  v.  Montreal  Ins.  Co.  673. 

V.  Thompson,  330. 

Thornton  v.  Western  Reserve  Farmers' 

Ins.  Co.  809. 
Thurston  v.  Citizens'  Mut.  Fire  Ins.  Co. 

163. 
Thurtell  v.  Beaumont,  148,  405. 
Tibbetts  v.  Hamilton  Mut.  Ins.  Co.  317. 
Tillou  V.  Clinton  &  Essex  Mut.  Ins,  Co. 

280. 
V.  Kingston  Mut.  lus.  Co.  61,  679, 

680,  711. 
Tilton  T.  Hamilton  Fire  Ins.  Co.  629. 
Times  Fire  Assurance  Co.  v.  Ilawke,  668. 
Tittemore  v.  Vt.  Mut.  Ins.  Co.  69. 
Todd  V.  Liverpool,  Lond.  «k  Globe  Ins. 

Co.  346,  362. 
Toll  V.  Whitney,  637. 
Tolman  v.  Manufacturers'  Ins.  Co.  666. 
Ti)ns;e  v.  Kcnnett,  665. 
Toj)ping  V.  Bickford,  49. 
Towne  v.  Fitchburg  Mut.  Fire  Ins.  Co. 

259. 
Townsend  v.  Northwestern  Ins.  Co.  338. 
Traders'  Ins.  Co.  v.  Roberts,  369,  579, 

680. 

V.  Stone,  122, 124,  399. 

Trask  v.  State  F.  &  M.  Ins.  Co.  410,  588. 
Treadway  v.  Hamilton  Mut.  Ins.  Co.  644. 
Trench  v.  Chenango  Co.  Mut.  Ins.  Co. 

151,  238. 
Trenton  Mut.  Life  &  Fire  Ins,  Co.  v.  Mc- 

Kelway,  831. 
Troy  Fire  Ins.  Co.  v.  Carpenter,  37,  284, 

496,  536,  678. 
Trull  v.  Iloxbury  Mut.  Firo  Ins.  Co.  625. 
Trumbull  v.  Tortage  Co.  Mut.  Ins.  fDo.  58. 
Trumbull  Co.  Mut.  Ins.  Co.  v.  Horner, 

111. 
Trustees  First  Baptist  Ch.  v.   Brooklyn 

F.  1.1=.  Co.  37,  461. 
Trustees  Unit.  Congrcg.  v.  Western  Ass. 

Co.  479. 
Tuckerman  v.  Bigler,  228. 

v.  Brown,  546,  548,  609. 

Turley  v.  Nortl>  American  Ins.  Co.  164. 
Turner  v.  Stctts.  325,  374. 

Tuttlo  V.  Robinson,  225. 

Tyler  v.  iEtna  Ins.  Co.  350,  550, 

V,  New  Amsterdam  F.  Ins.  Co.  464, 

Underhill  v,  Agawam  Mut.  Ins.  Co.  214, 
280,  702,  711. 

Union  Ins.  Co,  v,  Hogo,  331,  483. 

Union  Mut,  Fire  Ins,  Co.  v.  Keyser,  171. 

United  F,  L,  &  M.  Ins.  Co.  v.  Foote,  601, 
602. 

United  States  F.  A  M.  Ins  Co.  of  Balti- 
more v.  Kimberly,  691,  722. 


Upton  V.  Pratt,  402. 

Utica  Ins.  Co.  v.  American  Mut.  Ins.  Co. 

477. 
v.  Toledo  Ins.  Co.  36, 

Van  Allen  v.  Bllven,  279. 

Van  Bories  v.  United  L,  F.  «fe  M.  Ins.  Co. 

457. 
Vance  v.  Forster,  214. 
Vandegraaf  v.  Medlock,  869. 
Van  Deusen  v.  Charter  Oak  Fire  &  Marine 

Ins.  Co.  76,  706. 
Van  Hook  v.  Whitlock,  348, 
Vernon  v.  Smith,  208. 
Viall  V,  Genesaee  Mut,  Ins,  Co.  224. 
Viele  V.  Germania  Ins.  Co,  51,  274,  346, 

599,  708. 
Vogel  V,  People's  Mut.  Fire  Ins.  Co.  614, 

644. 
Vose  V.  Eagle  Life  &  Health  Ins.  Co.  36. 
V.  Hamilton  Mut.  Ins,  Co.  448. 

Wadsworth  v.  Pavis,  640. 
Walden  v.  Louisiana  Ins.  Co.  173. 
Walker  v.  Metropolitan  Ins.  Co,  803, 414, 

465. 
WitUace  V,  Insurance  Co.  655,  695. 
Wallingford  v.  Home  Mut.  Fire  Ins.  Co. 

200. 
Wall  V.  East  River  Ins.  Co.  283,  672. 

V,  Howard  Ins,  Co.  89,  664, 712, 750. 

Wulroth  V.  St.  Lawrence  Co.  Mut,  Ins. 

Co,  635, 
Walters  v.  Washington  Ins.  Co.  135,  820, 

503. 
Walton  V.  Louisiana  St.  Marine  &  Fire 

Ins,  Co,  419, 
Ward  V,  Washington  Ins,  Co,  287. 
Waring  v,  Indenmity  F,  Ina.  Co.  327. 
Warner  v.  Middlesex  Mut.  Association 

Co,  634. 

V.  Peoria  Marine  4  Fire  Ins.  Co. 

234,  450,  525, 

Warren  v.  Davenport  F,  Ins,  Co,  363, 
Washington  Ins.  Co,  v.  Coimn,  143. 

v,  Davison  et  al,  274, 

344,  452,  698,  690,  738. 

— ^—  v.  Grant  A  Stone, 


486, 


v.  Haves.  80,  461. 


Washington  Fire  Ins.  Co.  v.  Kelly,  141, 

622,  653. 
Washington  Co.  Mut.  Ins.  Co,  v.  Dawes, 

808. 
' v.   Hastings, 

310. 
^— — V.  Merchants 

A  Mnnfs,'  Ins.  Co.  338,  678,  679, 

•V.Miller,  636. 


1      i; 


Washington  Mut.  Ins.  Co.  v.  Chamberlain, 

312. 
Washington  Union  Ins.  Co.  v.  WUaon,  160. 


^B 


26 


TABLE   OF   CASES. 


Watchhorn  v.  Langford,/726. 
Waters  v.  Louisville  Ins,"  Co.  690, 

T.  Monarch  Fire  &  Life  lus.  Co.  826. 

Watkins  v.  Durand,  367. 

Watt  V.  Gore  District  Mat,  Ins.  Co.  479. 

Watts  V.  Brooks,  330. 

Webb  V.  National  Fire  Ins.  Co.  728. 

V.  Protection  «fe  ^Etna  Ins.  Cos.  629. 

Weido  V.  Germauia  Ins.  Co.  298,  304. 
Weinaugh  v.  Provincial  Ins.  Co.  161. 
Weisenberfifer  v.  Harmony  F.  &  M.  Ins. 

Co.  187,  736. 
Wellcome  v.  People's  Equitable  Mut.  Ins. 

Co.  616. 
Welles  V.  Boston  Ins.  Co.  322. 
West  Branch  Ins.  Co.  v.  Uelfenstein,  73, 

136,  184,  412. 
West  v.  Franklin  F.  Ins.  Co.  321. 

V.  Old  Colony  Ins.  Co.  595. 

Western  v.  Genessee  Mut.  Ins.  Co.  398, 488. 
Western  Mass.  Ins.  Co.  v.  Duffey,  210, 

463,  607. 

V.  Riker,  74. 

Westfal  v.  Hudson  River  Fire  Ins.  Co.  155. 
Westlake  v.  St.  Lawrence  Co.  Mut.  Ins. 

Co.  281,  425,  701. 
Westum  V.  City  F.  Ins.  Co.  686. 
Wetherell  v.  City  Fire  Ins.  Co.  616. 
Wheeling  Ins.  Co.  v.  Morrison,  129. 
Whitaker  v.  Farmers'  Union  Ins.  Co.  199. 
White  V.  Brown,  372. 

V.  Coventry,  171. 

v.  Haight,  548. 

V.  Havens,  331. 

V.  Madison,  45,  355. 

v.  Mutual  Fire  Assurance  Co.  183, 

286,  684,  730. 
■  V.  Republic  F.  Ins.  Co.  574. 

V.  Ross,  119,  171. 

V.  Selover,  171. 

Whitehead  v.  Price,  667. 

Whitehurst  v.  Fayetteville  Mut.  Ins.  Co. 

176,403,592. 
v.  North  Carolina  Mut.  Ins. 

Co.  411. 
AVhitemarsh  v. 

614. 


Charter  Oak  Fire  Ins.  Co. 


698. 


V.  Conway  F.  Ins.  Co.  291, 


White's  Bank  of  Buffalo  v.  Toledo  Fire  & 

Marine  Ins.  Co.  364. 
Whitman  v.  Meissncr,  644. 
WhitwcU  v.  Putnam  F.  Ins.  Co.  270,  457. 
Wight,  In  re,  179. 
Wightman  v.  Western  Marine  «fe  Fire  Ins. 

Co.  144,  149.  300,  514. 
Wilbur  v.  Bowditch  Mut.  Ins.  Co.  250, 

036,  693,  712. 
Wilde  V.  Boker,  562. 
Wilkinson  v.  Co^crdale,  33. 
Williuins  V.  Bubcock,  5^8. 
V.  Cheney,  284,  807,  309. 


Williams  v.  New  England  Mut.  Fire  Ins. 

Co.  92,  403,  667,  671,  697,  711. 
V.  Vermont  Mut,  Fire  Ins.  Co. 

386. 
Williaiuson  t.  Gore  Distr.  Mut.  F.  Ins, 

Co.  661. 
V.  Niagara  Distr.  Mut.  F.  Ins. 

Co.  626. 
Wilson  V.  iEtna  Ina.  Co.  385. 
V.  Conway  F.  Ins.  Co. 


89,  470, 
716,  716. 

—  V.  Genessee  Mut.  Ins.  Co.  38,  66. 

—  V.  Hampden  Fire  Ins.  Co.  93,  146. 

—  V.  Herkimer  Co.  Mut.  Ins.  Co.  240. 

—  V.  Hill,  68,  370. 

—  V.  Peoria  Marine  «fe  Fire  Ins,  Co. 


•673, 


V.  Trumbull  Mut,  Fire   Ins,   Co, 

223,  534, 
Windham  Co,  Mut.  Fire  Ins.  Co,  v.  Pierce, 

506. 
Winnesheik  Ins.  Co.   v.   Holzgrafe,  62, 

201.  475. 
Witherell  v.  Maine  Ins.  Co.  662, 676,  630, 

718.  . 

Wolfe  V.  Howard  Ins.  Co.  215. 

V.  Security  F.  Ins.  Co.  50,  80. 

Wood  V.  Hartford  Fire  Ins.  Co.  669. 

V.  N.  Western  Ins.  Co.  617,  623. 

V.  Poughkeepsie  Mut.  Ins.  Co.  200, 


290. 

—  V.  Rutland  &  Addison  Mut. 
Ins.  Co.  746. 


Fire 


Woodbury  Savings  B.  v.  Charter  Oak  F. 

&.  M.  Ins.  Co.  46.  391,  448,  473,  567. 
Woodfin  V.  Asheville  Mut.  Ins.  Co.  617. 
Woods  V.  Atlantic  Mut.  Ins.  Co.  235,  286. 
Worcester  Bank  v.  Hartford  Fire  Ins.  Co. 

428.     ■ 
Work  V.  Merchants  &  Farmers'  Mut.  Fire 

Ins,  Co.  874, 
Works  V,  Farmers'  Mut.  F,  Ins.  Co.  414. 
Workman  v.  Insurance  Co.  727. 
Worsley  v.  Wood,  162. 
Wright  &  Polo,  In  re,  179. 
Wustum  V.  City  Fire  Ins.  Co.  686. 
Wynian  v.  People's  Equity  Ins.  Co.  618, 

643. 

V.  Prossor,  377. 

— — —  V.  Wyman,  377. 

Yard  v.  Pacific  Mut.  Ins.  Co.  607. 

Youkers  N.  Y.  F.  Ins.  Co.  v.  Ilotlman  F. 
Ins.  Co.  236,  671. 

York  County  Mut,  Fire  Ins,  Co,  v.  Bow- 
den,  172, 

V.  Knight,  119, 

V.  Turner,  228. 

Young  V.  Eagle  Fire  Ins.  Co.  73. 

V.  Washington  Co.  Mut.  Ins.  Co.  335. 

Zallce  V.  Laclede  Mut.  F.  A  il.  Ins.  Co.  109, 


TABLE   OF    REPORTS. 


EEPORTS    OF 

GREAT    BRITAKf. 

Acton, 

1  vol.  1 

Cases  in  Court  of  Sessions, 

16  vol. 

Adolphus  &  Ellis, 

12 

II 

"           "        New 

Adolphus  &  Ellis,  New  Series, 

18 

11 

Series, 

21    " 

Alcoclc  dc  Napier, 

1 

i< 

Case  of  Banker, 

1    "  1 

Aleyn, 
Amliler, 

1 

« 

Cases  of  Practice,  temp.  Parker, 

1         <( 

1 

(1 

Cases  of  Settlement,  temp.  Parker 

1         " 

Anderson, 

1 

« 

Case  of  Shelley, 

1         " 

Annaly, 

1 

« 

Cases  temp.  Finch, 

1         *' 

Anstriitlier, 

8 

« 

Cases  temp.  Hardwicke, 

1         " 

Arkley, 

1 

« 

Cases  temp.  Holt, 

1        " 

Arnold, 

1 

« 

Cases  tetnp.  Macclesfield, 

1         " 

Atkyns, 

8 

i< 

Cases  temp.  Talbot, 

1         *' 

Ball  &  Beatty, 

2 

II 

Chancery  Cases, 

1         " 

Barnardiston,  K.  B., 

2 

ti 

Chancery  Reports,          i 

1         " 

Barnardiston,  Chy., 

1 

M 

Chitty, 

9      it 

Barnewall  &  Adolphus, 

6 

U 

Clarke, 

11   " 

Bnrnewrtll  A  AlderSon, 

6 

II 

Clarke  «fe  Finnelly, 

12    •' 

Barncwall  «fe  Cresswell, 

10 

II 

New  Scries, 

tj    It 

Batty, 

1 

l( 

Clayton, 

1     " 

Beatty, 

1 

<f 

(.'oke. 

a      It 

Boavan, 

33 

« 

Colles, 

1      '' 

Bell, 

7 

II 

Collyer, 

Q      " 

Benloe  &  Dallison, 

1 

II 

Comberback, 

1      " 

Benloe,  New, 

1 

■  f 

Common  Bench,         »   vol.  10  to  18 

Best  &  Smith, 

6 

II 

Common  Bench,  New  Series, 

20    " 

Bingham, 

10 

11 

Comyns, 

2    " 

Bing:ham,  New  Cases, 

6 

It 

Connor  «fe  Lawson, 

2    " 

Blackhorne,  Diindas  dc  Osborne, 

1 

11 

Cook  &  Alcock, 

1     " 

Blackstone,  Wm., 

2 

It 

Cooke, 

I     " 

Blackstone,  II., 

2 

11 

Cooper,  Chy.  Cases, 

1     " 

Bligh. 

4 

U 

Cooper,  temp.  Brougham, 

1     " 

Blii,'h,  New  Series, 

11 

It 

Cooper,  temp.  Cottenham , 

1     " 

Bosunquet  «fe  Puller,                 \ 

6 

« 

Cowper, 

2    " 

Bridgman, 

1 

«( 

Cox,  Chy., 

2    " 

British  Crown  Cases, 

6 

It 

Craig  &  I'hillips, 

1     " 

Broderip  &  Bingham, 

3 

II 

Crawford  &  Dix, 

3    " 

Brown, 

2 

II 

Croke, 

4    " 

Brown,  Chy., 

4 

It 

Cronipton  &  Jervis, 

2    " 

Brown,  High  Court  of  Judiciary 

,     1 

It 

Crompton  &  Meeson, 

2    " 

Brown,  Parliament, 

8 

It 

Crompton,  Meeson  &  Boscoe, 

2    " 

Brownlow  &  Gouldaborough, 

1 

f< 

Cunningham, 

1    " 

Buck, 

1 

<( 

Daniel, 

1    " 

Bulstrode. 

1 

(1 

Davies, 

1    ♦• 

Bunbury, 

1 

<£ 

Davison  &  Merivale, 

1    « 

Burrow, 

6 

II 

Deacon, 

4    •' 

Caldecott, 

1 

U 

Deacon  &  Chitty, 

4    " 

Culthrop, 

1 

tl 

Do  Gex, 

I    " 

Campbell, 

4 

IC 

De  Gex,  Fisher  &  Jones, 

8    ** 

Carrington  «fe  Kirwnn, 

2 

(( 

Do  Gex  &  Jones, 

4    " 

Carrington  &  Marshman, 

1 

it 

De  Gex,  Jones  &  Smith, 

8    " 

Carrington  <b  Payne, 

9 

It 

Do  Gex  &  Stnale, 

6    " 

Carter^ 

1 

<( 

Do  Gex,  McNaiighton  &  Gordon 

,     5     " 

Carthew, 

1 

<* 

Dickens, 

2    " 

Cary, 

1 

11 

Douglas, 

4    " 

Caaea  in  Chancery, 

1 

tl 

Dow, 

6    " 

i\ 


I  I 


28 


TABLE   OF    EEPORTS. 


Dow  &  Clark,  or  Dow,  New  Series,  2  vol. 

Irish  Equity, 

4 

vo\ 

Dowling, 

9. 

(1 

Irish  Chancery, 

17 

It 

Dowling,  New  Series, 

2 

« 

Irish  Common  Law, 

17 

u 

Dowling  &  Lowndes, 

6 

« 

Irvine, 

2 

H 

Dowling  &  Ryland,  Q.  B., 
Dowling  &  Ryland,  Nisi  Prius, 

9 

« 

Jacob, 

1 

U 

1 

it 

Jacob  A  Walker, 

2 

tt 

Dowling  &  Ryland,  Magistrates' 

Jebb  A  Bourke, 

1 

It 

Cases, 

4 

tt 

Jebb  A  Symes, 

2 

■  1 

Drewry, 

4 

a 

Jenkins, 

1 

>< 

Drury, 

1 

it 

Jones, 

2 

« 

Drury  «fe  Smale, 

2 

t( 

Jones  A  Carey, 

1 

<l 

Drury  <fe  Walsh, 

2 

a 

Jones  A  La  Touche, 

8 

<l 

Drury  <t  Warren, 

4 

u 

Jones,  Wm., 

1 

<( 

Durnford  &  East, 

8 

t( 

Jones,  Thomas, 

1 

u 

Dyer, 

1 

f( 

Johnson,  Chy., 

1 

II 

Eost, 

16 

it 

Kay, 

1 

(1 

Eden, 

2 

■( 

Kay  A  Johnson, 
Keble, 

4 

i< 

Edwards, 

1 

« 

1 

It 

Ellis  &  Blackburn, 

8 

II 

Keen, 

2 

II 

Ellis,  Blackburn  &  ElUs, 

1 

<( 

Keilwey, 

1 

II 

Ellis  <&  Ellis, 

3 

tf 

Kelyng,  J., 

1 

n 

English  Law  Reports, 

15 

*( 

Kelyng.  W., 

1 

u 

Equity  Cases  Abridged, 

8 

ft 

Kenyon, 

2 

« 

Espinasse, 

6 

it 

Knapp, 

8 

II 

Finch,  Cases  temp.. 

1 

u 

Lane, 

1 

<i 

Fitzgibbons, 

1 

it 

Latch, 

1 

II 

Flan  igan  <&  Kelly, 

1 

it 

Leonard, 

1 

II 

Forrest, 

1 

« 

Lcvinz, 

8 

II 

Forrester, 

1 

« 

Ley, 

1 

II 

Fortescue,  J., 

1 

« 

Lilly, 

1 

ft 

Foster  &  Finlason, 

1 

« 

Littleton, 

1 

tt 

Fox  <fe  !»mith,        * 

1 

«t 

Lloyd  A  Goold,  temp.  Plunket, 

1 

tt 

Freeman,  Chy., 

1 

u 

Lloyd  A  Goold,  temp.  Sugden, 

1 

It 

Freeman,  K.  B., 

1 

tt 

Lloyd  A  Welsby, 

1 

n 

Gale, 

2 

<t 

Lofit. 

1 

M 

Gale  &  Davison, 

4 

<i 

Longficld  A  Townsend. 

1 

.  « 

Giflfard, 

4 

<i 

Lucas, 

1 

<l 

Gilbert,  Cases  Law  A  Equity, 

1 

<< 

Lutwyche, 

2 

II 

Glynn  &  Jameson, 

2 

a 

Mnddock, 

6 

II 

Godbolt, 

1 

it 

Manning  A  Granger, 

7 

i< 

Gouldsborough, 

1 

<t 

Manning,  Granger  A  Scott, 

0 

1." 

Gow, 

1 

tt 

Manning  A  Ryland,  Points  Practice,  6 

II 

Hall  «fe  Twells, 

2 

« 

Manning  A  Ryland,  Magistrates' 

Hare, 

11 

« 

Cases, 

2 

tt 

Hardres, 

1 

u 

March, 

1 

tt 

Harrison,  Chy., 
Harrison  &  WoUaston, 

2 

u 

Marshall, 

2 

i« 

1 

tt 

lyiaule  A  Selwyn, 

6 

<i 

Hayes, 

1 

(t 

McCartney  A  Ogle, 

1 

II 

Hayes  &  Jones, 

1 

tt 

Meeson  A  Welsby, 

16 

II 

Hctley, 

1 

tt 

McQueen's  Rep.,  House  of  Lords, 

2 

II 

Hobart, 

1 

tt 

Merwale, 

8 

II 

Hodges, 

1 

tt 

MfNadghton  A  Gordon, 

1 

It 

Hogan, 

2 

tt 

McLean  A  Robinson, 

1 

II 

Holt, 

1 

tt 

M'Leland, 

1 

II 

Holt,  Cases  temp.. 

1 

tt 

M'Lcland  A  Young, 

1 

II 

Home  <fe  Hurlstone, 

1 

tt 

Modern  Reports, 

12 

II 

Hovendon's  Supplement  to  Vesey, 

MoUoy, 

3 

11 

Jun., 

2 

« 

Montagu, 

1 

II 

Hudson  &  Brooke, 

2 

it 

Montagu  A  Ayrton, 
Montagu  A  Bligh, 

8 

II 

Hurlstone  &  Coltman, 

4 

tt 

1 

It 

Hurlstom  di  Norman, 

7 

it 

Montagu  A  Chitty, 

1 

II 

Irish  Term, 

1 

u 

Montagu,  Deacon  A  De  Oex, 

3 

II 

Irish  Law, 

8 

it 

Montagu  A  McArthur, 

1 

II 

TABLE  OF   EEP0ET9. 


29 


Moody, 

Moody  AMalkin, 

Moody  (fe  Robinson, 

Moore,  A., 

Moore,  B., 

Moore,  E.  T., 

Moore's  East  Iniia  Appeals, 

Moore  <&  Payne, 

Moore  «fe  Scott, 

Mosely, 

Murphy  <fe  Hnrlstone, 

Mylne  <fe  Craig, 

Mylne  <&  Keen, 

Nelson, 

Neville  &  Manning, 

Neville  &  Perry, 

Now  Practice  Cases, 

Noy, 

Owen, 

Palmer, 

Parker, 

Paton's  Appeal  Cases, 

Peake, 

Peere  Williams, 

Perry  &  Davison, 

Phillips, 

Plowcien, 

Pollexfen, 

Pophara, 

Price, 

Raymond,  Lord, 

Raymond,  Sir  Thomas, 

Ridije way's  Hardwicke, 

Rid'j;ewfly's  Parliament, 

Ridgeway,  Lapp  &  Schoales, 

Robertson, 

Robinson, 

Rollo, 

Rose, 

Russell, 

Russell  &  Mylne,  '< 

Ryun  &  Moody, 

Salkcld, 

Saunders, 

Sausso  <&  Scully, 

Saville, 

Saver, 

Schoales  &  Lefroy, 

Scott, 

Scott,  New  Reports, 

Session  Cases, 

Shaw, 

Shaw's  Appeal  Cases, 


2  vol. 


1 
12 
12 
6 
6 
4 
1 
1 
6 
S 
1 
6 
8 
2 
1 
1 
1 
1 
6 
1 
3 
4 
2 
1 
1 
1 
13 
8 
1 
1 
8 
1 
2 
2 
2 
2 
6 
2 
1 
8 
3 
1 
1 
1 
2 
8 
8 
2 
1 


Shaw  <fe  McLean, 

Shower, 

Shower, 

Siderfin, 

Simons, 

Simons,  New  Series, 

Simons  &  Stuart, 

Skinner, 

Smith,  J.  P., 

Smith  <fe  Batty, 

Smythe, 

Starkie, 

Strange,  Sir  J., 

Strange,  Sir  E., 

Style, 

Swanston, 

Swinton, 

Syme, 

Taralyn, 

Taunton, 

Term  Reports,  Durnford  A  East. 

Tothill, 

Turner  <fe  Russell, 

Tyrwhitt, 

Tyrwhitt  «fe  Granger, 

Vaughan, 

Ventris, 

Vernon, 

Vernon  <fe  Scriven, 

Vesey,  Sen., 

Vesey,  Jr., 

Vesey  <fe  Beames, 

Wall  is  <fe  Lyne, 

Welsby,  Ilurlstone  «fe  Gordon, 

West, 

Wightwick, 

Willes, 

Willmore,  Wollaston  <&  Hodges, 

Wilmot, 

Wilson, 

Wilson,  Cliy., 

Wilson  &  Shaw, 

Winch, 

Year  Books, 

Yelverton, 

Younge, 

Youngo  &  Collyer,  Exchequer, 

Younge  &  Collyer,  Vice-Chy., 

Youn2:e  &  Jervis, 

Law  Report  Series — 12  Eq. ;  6 

Ex. ;  6  Q.  B. ;  4  H.  L. ; 

P.  C. ;  1  H.  L.  Sc. 


8  vol. 


1 

tt 

2 

U 

1 

It 

n 

« 

2 

ti 

2 

ti 

1 

ft 

3 

tl 

1 

tt 

1 

tt 

3 

tt 

2 

tt 

2 

t< 

1 

(( 

3 

ft 

2 

ft 

1 

tt 

1 

tt 

8 

tt 

',     8 

ft 

1 

ft 

1 

ft 

6 

tt 

1 

tt 

1 

If 

1 

tt 

2 

tt 

1 

tt 

13 

ft 

19 

ft 

8 

tt 

1 

tt 

11 

ft 

1 

tt 

1 

ft 

1 

ft 

,      1 

tt 

1 

ft 

1 

tf 

8 

ft 

1 

tt 

1 

tt 

10 

ft 

1 

ft 

1 

tt 

4 

tt 

2 

ft 

3 

tt 

C.  P. 

;  6 

6  Ch 

:  3 

■' 


EEPORTS  OF  BEITTSH  AMEEIOA. 


Allen,  New  Brunswick, 
James,  Nova  Scotia, 
Kerr,  Now  Brunswick, 
Lower  Canada, 
Stuart's  Lower  Canada, 


2  vol  1 

1 

tt 

8 

tf 

17 

tt 

1 

l« 

Upper  Canada,  K.  B., 
Upi)er  Canada,  Q.  B., 
Grant's  Chancery, 
Upper  Canada  Com.  PI., 


vol. 


3  to  6 
29  vol. 
16    " 
20    " 


30 


TABLE  OP    REPORTS. 


Dnllas, 
<  rntich, 
Wheitton, 
Black, 

UNITED 

Gallison, 

Mason, 

Sumner, 

Story, 

Woodbury  <fe  Minot, 

Curtis, 

Baldwin, 

Wallace,  ,Tr., 

McLean, 

Peters'  Admiralty, 

Bee's  Admiralty, 

Gilpin, 

Crabbe, 

McAllister, 

Newberry, 

Paine, 

Clifford, 

Bond, 

Deady, 

Benedict, 


EEPOETS  OF  THE  UNITED  STATES. 

UNITED  STATES  SUPREME  COURT. 


4  vol. 
9    " 
12    " 
2    " 


Peters, 

Howard, 

Wallace, 


STATES  CIRCUIT  AND  DISTRICT  COURTS. 
2  vol.  I  Lowell, 


8 

3 

2 

1 

2 

6 

2 

1 

1 

1 

I 

1 

2 

2 

2 

1 

4 


Dillon, 

Miller, 

Blatchford, 

Dallas, 

Wallace, 

Peters, 

Wnghington, 

Olcott, 

Brockenbrough, 

Ware, 

Davies, 

Crancli, 

Spraguo, 

Hempstead, 

Abbot, 

Deverenx, 

Blatchford  <fe  Rowland, 

Taney,  by  Campbell, 


STATE  COURTS. 


ALABAMA. 

Minor, 

Stewart, 

Stewart  <fe  Porter, 

Porter, 

Alabama  Reports,  4 

ARKANSAS. 

Pike.  J 

English,  I 

Arkansas  Reports,  vol.  14  to  21.  and 
24  to  20. 

_  ,.,  CALIFORNIA. 

California  Reports, 

CONNECTICUT. 

Kirby, 

Root, 

Bay, 

Connecticut  Reports, 

„        .  DELAWARE. 

Harrington, 
Houston, 

T.1      •:■     T,  l^tORIDA. 

Florida  Reports, 

Charlton.  T.  U.  P 
Charlton,  R.  M.,  "' 
Dudley, 

Georgia  Decision  b, 
Georgia  Reports, 


40 

1 
2 
6 

88 

6 
1 

18 


1 
1 
1 
1 
44 


Breese, 
Scanimon, 
Oilman, 
Illinois  Reports, 

Blackwell, 
Smith, 
Carter, 
Indiana  Reports, 

Morris, 

Green, 

Iowa  Reparts, 


ILLINOIS. 


INDIANA. 


IOWA. 


Kansas  Reports, 


KANSAS. 


KENTUCKY. 


Hardin, 

Bibb, 

Marshall,  A.  K., 

Littell, 

Littell's  Select  Cases, 

Monroe, 

Marshall,  J.  J., 

Dana, 

B.  Monroe, 

Metcalfe, 

Duval, 

Bush,  ' 


16  vol 

24 

« 

14 

it 

1 

vol. 

1 

« 

1 

(( 

9 

t< 

4 

it 

8 

It 

1 

tt 

4 

tt 

1 

it 

2 

tt 

1 

tt 

1 

It 

6 

(* 

2 

tt 

1 

ti 

2 

tt 

1 

it 

1 

tt 

1 

tt 

1  vol. 

4  " 

6  " 

66  " 

8  " 

1  " 

2  " 
35  " 

1  " 

4  " 

82  " 


1 
4 
3 
6 
1 
1 
7 
9 

18 
4 
2 

8 


TABLE  OP    REPORTS. 


31 


12  vol. 

8 

u 

12 

u 

19 

(( 

28 

u 

9 

u 

69 

« 

4 

t( 

1 

u 

2 

« 

LOmiAMA. 

Martin. 
Martin,  N.  S., 
Robinson, 
Louisiana  Reports, 
Louisiana  Annual  Reports, 

MAINE. 

Greenloaf, 
Maine  Reports, 

MARTLAND. 

Harris  &  M'Henry, 
Harris  &  Johnson, 
Harris  A  Gill, 

Gill  &  Johnson,  12    < 

Gill,  9    ' 

Maryland  Reports,  86    ' 

Bland,  Chancery,  8    ' 

Maryland,  Chancery,  4 

MASSAOHUSETTS. 

Massachusetts  Reports,  17 

Pickering,  24 

Metcalf.  18 

Cushing,  12 

Gray,  16 

Allen,  14 
Massachusetts  Reports,        9?  to  106 

laCBIOAN. 

Douglas,  2 

Harrington,  Chancery,  1 

Walker,  Chancery,  1 

Michigan  Reports,  24 

MINNESOTA. 

Minnesota  Reports,  17 

MISSISSIPPI. 

Walker,  1 

Freeman,  Chancery,  1 

Smede  &  Marshall,  Chancery,  1 

Smcde  &  Marshall,  14 

Howard,                                \  7 

Mississippi  Reports,  46 

MISSOURI. 

Missouri  Reports,  60 

NEVADA. 

Nevada  Reports,  7 

NEW  HAMPSHIRE. 

New  Hampshire  Reports,  includ- 
ing Foster,  60 

NEW  JSESET. 

Pennington,  1 

Coxe,  1 

Southard,  2 

Halsted,  7 

Green,  8 

Harrison,  4 

Spencer,  1 

Green,  Chancery,  3 

Halsted,  Chancery,  4 

Stockton,  Chancery,  2 

Saxton,  Chancery,  1 

Beasley,  Chancery,  1 

2a 


Zabriskie, 
Butcher, 
McCarter, 
C.  £.  Green, 
Vroom, 

NEW  TORE, 

Paige,  Chancery, 

BarDour,  Chancery, 

Edwards,  Chancery, 

Hopkins,  Chancery, 

Bandford,  Chancery, 

Clark,  Chancery, 

Hoffman,  Chancery, 

Johnson,  Chancery, 

Coleman's  Cases, 

Coleman  &  Caino's  Cases, 

Johnson's  Cases, 

Anthon's  Nisi  Prius, 

Cainea'  Reports, 

Caines'  Cases, 

Johnson's  Reports, 

Hall, 

Hilton, 

Bradford, 

Cowen, 

Wendell, 

Hill, 

Denio, 

New  York  Reports,  including  Corn- 
stock,  Selden,  Kernan,  Hand, 
Keyes  and  Sickles, 

Sandford, 

Duer, 

Hill  &  Denio, 

Bosworth, 

Barbour, 

E.  D.  Smith, 

Howard's  Practice  Reports, 

Abbott's  Practice  Reports, 


4  vol. 
6    " 

a  " 
1  " 

6    " 


3 

u 

u 

a 

u 

u 

u 

« 

« 

2 

« 

8 

« 

1 

« 

8 

(t 

2 

u 

20 

II 

2 

<i 

4 

9 

26 

7 

6 


Robertson, 

Hilton, 

Daly, 

Lansing, 

Sweeny, 

Edmond's  Select  Cases, 

NORTH  OABOUNA. 

Haywood, 

Martin, 

Taylor, 

Murphey, 

Hawks, 

Devereux's  Equity, 

Devereux  <fe  Battles, 

Iredell's  Equity, 

Busbee's  Equity, 

Jones'  Equity, 

North  Carolma  Term  Rep., 

Cameron  &  Norwood, 

Carolina  Law  Repository, 

Devereux's  Law, 

Devereux  dc  Battles'  Law, 


N.  S, 


49 

6     ' 

6 

1 
10 
68 

4 
43 
19 
12 

7 

2 

8 

6 

1 

1 

2 

2 

1 

8 

4 

2 

8 

8 

1 

7 

1 

1 

2 

4 

4 


« 
« 


i 

4 


82 


TABLE  OF    BEPORTS. 


Iredell's  Law, 

18  voL 

McCord, 

Busbee's  Law, 

1 

<• 

MoMullan, 

Jones'  Law, 

8 

u 

Rice, 

Winston's  Law, 

1 

« 

Harper, 

PUlUps'  Law, 

1 

a 

Cheve, 

North  Carolina  Rep., 

67 

u 

Balllie, 

Spear, 

Constitutional  (Treadway),' 

Constitutional  (MiUs),    ^ 

OHIO. 

Wright, 
Ohio  Reports, 

1 

20 

<> 

Ohio  State  Reports, 

Disney, 

Handy, 

22 
1 

ti 

Strobhart, 
Richardson, 

2 

« 

South  Carolina  Reports, 

OBEOON, 

TBNNK8SM. 

Orgeon  Reports, 

3 

« 

Haywood 
Overton, 

FK^NSTLVANLL 

Addison, 

Miles, 

Brown, 

Ashmead, 

Dallas, 

1 
2 
2 
2 
4 

u 

« 

u 

11 

Cooke, 

Yerger, 

Peck, 

Meigs, 

Martin  A  Yerger, 

Yeates, 

4 

l< 

Humphrey, 

Swan, 

Sneed, 

Head, 

Coldwell, 

Hei  ikall 

Parsons'  Select  Cases, 

Binney, 

Bawle, 

Sergeant  A  Rawle, 

2 

6 

6 

11 

« 

« 

« 

Pennsylvania  Reports, 

S 

« 

M-i.^lt  1  &OUf 

Watts, 

10 

« 

Wharton, 

6 

« 

Texas  Reports, 

Brightley'fl  Nisi  Prins, 

1 

« 

VEBMOMT. 

Watts  &  Sergeant, 

9 

U 

Chipman,  N., 

Pennsylvania  State  Reports, 

69 

« 

Chipman,  D., 

Grant, 

2 

« 

Tyler, 

PUladelphia  Reports, 

1 

« 

Brayton, 

Pittsburg  Rep., 

2 

« 

Aiken, 

Legal  Oazette, 

1 

tt 

Vermont  Reports, 

Pwnsylvania  Law  Journal, 

6 

tt 

VIEOIMIA. 

RHODB  ISLAND, 

Jefferson, 

Rhode  Island  Reports, 

8 

II 

Wythe's  Chancery, 

SOUTH  OABOUNA. 

Washington, 

McMullan's  Equity, 

II 

Virginia  Cases, 

Spears'  E(|uity, 
Bay's  Equity, 

II 
II 

Call, 

Henning  i&  Munford, 

Munford, 

Brevard's  Equity, 

II 

Bice's  Equity, 
Cheve's  Equity, 

II 
II 

Gilmer, 
Randolph, 

Strobhart's  Equity, 

II 

Patton  A  Heath, 

Riley's  Chancery  Cases, 
Hill's  Chancery, 

II 

Robinson, 

T      S     1. 

<l 

Leigh, 

Bullie's  Equity, 
Dessaussure's  Equity, 

II 

Grattan, 

II 

WEST   VIBOINIA. 

McCord's  Chancery, 

If 

Hagan, 

Richardson's  Equity, 

II 

WISOONSIN. 

Richardson's  Chancery, 

16 

II 

Burnett, 

Riley's  Law  Cases, 

fi 

Chandler, 

Harper's  Law  and  Equity, 

II 

Wisconsin  Reports, 

HiU, 

8 

ft 

Pinney's  Reports, 

Nott  A  McCord, 

2 

It 

4  vol. 

2  " 

1  " 

1  •« 

1  " 

2  " 
2  " 
2  " 
2  " 
6  " 

14  " 

81  •• 


« 


« 
II 


1 
10 
1 
1 
1 
11 
2 
6 
8 
7 
8 

84 

1 
2 
2 
1 
2 
44 

1 
1 

a 
a 

6 

4 
6 
1 

e 
a 

2 
12 
21 


1  " 

4  •« 

28  " 

1  " 


„ 


DIGEST 


or 


FIRE  INSURMCB  DECISIONS. 


y 


^ 


DIGEST 


OF 


FIRE   INSURANCE   DECISIONS. 


AGENT. 

§  1.  An  action  lies  against  one  who  voluntarily, 
though  without  compensation,  undertakes' to  obtain  insur- 
ance for  another,  but  proceeds  so  negligently  and  unskil- 
fully that  the  policy  is  worthless.  Wilkinson  v.  Cover- 
dale,  1  Esp.  15.    1793. 

§  2.  If  a  merchant  is  in  the  habit  of  effecting  insur- 
ances for  his  correspondent,  and  is  directed  to  make  an 
insurance  and  neglects  to  do  so,  he  is  himself  answerable 
for  the  losses  as  insurer,  and  is  entitled  to  a  premium  as 
such.  Morris  v.  Summerl,  2  Wash.  C.  C.  U.  S.  203. 
1808. 

Note  to  this  case  says  it  was  affirmed  in  Sup.  Ct.  U. 
S.  Feb'y.     1809. 

§  3.  Where  the  act  of  incorporation  of  a  mutual  com- 
pany, provided,  "  that  all  policies  should  be  signed  by 
the  president  and  secretary,"  and  the  "  president,  with 
one-third  of  the  directors,  shall  constitute  a  quorum  for  the 
transaction  of  business,"  and  the  president  alone  waived 
the  sufficiency  of  preliminary  proof,  required  by  the  con- 
ditions of  the  policy ;  Held,  that  the  president,  as  such, 
had  no  power  to  waive  any  conditions  of  the  policy  when 
not  authorized  by  the  directors.  Dawes  v.  North  River 
Ins.  Co.  7  Cow.  i^.  Y.  462.     1827. 

§  4.  The  president  of  an  insurance  company,  as  such, 
has  no  power  to  dispense  with  the  conditions  of  a  policy. 
McEvers  v.  Lawrence,  1  Hoffman  Ch.  N.  Y.  172.     1839. 

3 


J 


34 


AGENT. 


§  5.  Plaintiff  consigned  books  to  defendant,  and  in- 
structed him  to  have  them  insured,  vvl^'ch  defendant  failed 
to  do,  and  they  were  destroyed  by  fire ;  Held,  that  plaint- 
iff was  entitled  to  recover  of  defendant  the  full  value  of 
the  books,  in  the  absence  of  any  evidence  of  a  custom 
regulating  the  amount  of  damages  in  such  cases,  or  of  any 
rule  among  insurers  to  insure  only  a  certain  proportion  of 
the  value.    Ela  v.  French,  11  N.  H.  356.    1840. 

§  6.  An  executor  is  not  liable  for  not  keeping  up  the 
insurance  on  his  testator's  property.  Baily  v.  Gould,  4 
Young  <fe  Collyer,  221.     1840.     Fry  v.  Fry,  27  Beav.  146. 

1859. 

§  7.  Where  an  agent,  entrusted  with  blank  policies, 
and  authorized  to  effect  insurances  "  for  a  particular  city 
and  its  vicinity,"  insured  property  in  another  city  100 
miles  distant  where  the  company  had  another  agent  with 
similar  authority  for  "  that  city  and  vicinity ;"  Held,  that 
the  company  was  bound  by  such  a  policy,  as  he  was  a 
general  agent  of  the  company  and  acting  within  the  scope  • 
of  his  authority ;  and  that  the  company  could  not  dis- 
charge themselves  by  setting  up  their  private  instructions 
to  such  agent  when  they  were  wholly  unknown  to  the 
plaintiff  at  time  of  entering  into  the  contract.  Lightbody 
V.  North  American  Ins.  Co.  23  Wend.  N.  Y.  18.     1840. 

§  8.  Where  premium  was  paid  on  the  30th  March, 
and  receipt  given,  and  fire  took  place  next  day,  and  policy 
was  delivered  on  the  21st  day  of  April  following  by  the 
agent,  which  was  after  the  insurance  company  had  refused 
to  pay  the  loss  and  had  told  assured  that  they  had  revoked 
the  authority  of  the  agent,  though  the  letter  of  revocation 
was  not  written  till  the  22d,  and  was  not  received  by  the 
agent  until  the  23d  day  of  April;  the  delivery  bound  the 
company.  Lightbody  v.  North  American  Ins,  Co.  23 
Wend.  N.  Y.  18.     1840. 

§  9.  Where  an  agent,  entrusted  with  blank  policies 
and  authorized  to  effect  insurances,  insured  a  special  risk, 
contrary  to  the  Instructions  of  the  office ;  Held,  that  never- 
theless the  company  were  bound  by  it,  as  assured  had  not 


i*»-.  UuVii>^->* 


AGENT. 


35 


been  made  cognizant  of  the  private  instructions  of  the 
company  to  the  agent.  Lightbocly  v.  North  American 
Ins.  Co.  23  Wend.  N.  Y.  18.    1840. 

§  10.  Where  there  is  no  evidence  of  the  written  ap- 
pointment of  an  a^^ent,  the  jury  must  decide  on  the  fact 
and  the  extent  of  his  agency  by  what  he  testifies  and  did, 
coupled  with  the  acts  of  the  defendants  recognizing  him. 
Nicol  V.  American  Ins.  Co.  3  Wood  &  Min.  C.  C.  U.  S. 
529.     1847. 

§  11.  If  either  party  must  suffer  by  the  mistake  of 
the  agent,  it  must  be  the  party  whose  agent  he  is.  Nicol 
V.  American  Ins.  Co.  3  Wood  <k  Min.  C.  C.  U.  S.  529.   1847. 

§  12.  Where  an  assignment  of  the  interest  of  the 
assui'ed,  "  unless  by  consent  of  the  company  manifested  in 
writing,"  was  prohibited  by  the  policy,  and  the  secretary, 
on  application  to  him,  indorsed  upon  the  policy  a  consent 
to  an  assignment  of  the  policy ;  it  seems  that  his  authority 
to  do  so,  in  the  absence  of  evidence  to  the  contrary,  should 
be  presumed.  But  if  it  were  necessaiy  to  prove  his  author- 
ity, a  formal  resolution  of  the  board  of  directors  need  not 
i)e  shown.  Evidence  that  the  secretary,  he  being  the  sole 
agent  of  the  company  in  transacting  business  at  their 
office,  has  been  in  the  uniform  habit  of  giving  such  con- 
sent, in  writing,  and  making  regular  entries  of  his  acts  in 
the  books  of  tliQ  company,  without  any  objection  or  re- 
pudiation on  the  part  of  the  company,  is  enough  at  least 
to  carry  the  cpiestion  of  authority  to  the  jury.  Conover 
v.  Mutual  Ins.  Co.  3  Denio,  N.  Y.  254.  184G.  Affirmed 
1  Comst.  N.  Y.  290.     1848. 

§  13.  Where  a  Ijy-law  of  a  mutual  insurance  company 
empowered  "the  president,  vice-president,  or  either  of 
them,  to  make  contracts  for  the  corporation,  to  transact  all 
its  ordinary  Ijusiness,  and  to  perform  whatever  belongs  to 
the  executive  department,"  the  president  may  transfer  a 
premium  note  in  advance.  Ilowland  v.  Meyer,  3  Comst. 
N.  Y.  290.     1850. 

§  14.  Although  an  agent,  who  is  only  authorized  to 
receive  and  forward  applications,  has  full  knowledge  of 


86 


AGENT. 


material  facts,  not  disclosed  by  the  assured  in  an  applica- 
tion for  life  insurance,  yet  his  knowledge  cannot  be  charge- 
able to  the  insurance  company.  Vose  v.  Eagle  Life  & 
Health  Ins.  Co.  6  Cush.  Mass.  42.     1850. 

§  15.  AVTiere  a  by-law  in  a  policy  of  insurance  de- 
clared that  the  agent  taking  the  application  should  be 
deemed  the  agent  of  the  applicant ;  Meld,  that  such  by-law 
did  not  divest  the  a^ent  of  his  attributes  as  agent  of  the 
company  when  in  their  employ,  soliciting  risks  of  insurance 
and  making  applications.  Masters  v.  Madison  County  Mut. 
Ins.  Co,  11  Barb.  N.  Y.  624.     1851. 

§  16.  Where  the  charter  gave  to  the  directors  the 
power  of  assenting  to  assignments,  and  the  secretary  alone 
consented  to  an  assignment  of  a  policy ;  Meld,  that  after 
entering  it  upon  the  books,  subject  to  the  inspection  of 
the  directors,  without  any  disapproval  being  manifested 
on  their  part,  the  act  was  binding  on  the  company. 
Durrar  v.  Hudson  County  Mut.  Ins.  Co.  4  Zabr.  N.  J. 
171.    1853. 

§  17.  An  agent  of  two  insurance  companies,  having 
taken  a  risk  in  one  company  on  the  18th  iVov.  re-insured 
it  in  his  other  company  on  the  2 2d  Nov.  making  policy  to 
himself  as  agent,  and,  before  approval  or  rdection  by  the 
company,  the  insured  property  was  lost ;  Jield,  that,  as  he 
was  agent  for  both  parties,  the  contract  was  invalid.  Utica 
Ins.  Co.  V.  Toledo  Ins.  Co.  17  Barb.  N.  Y.  132.     1853. 

§  18.  One  appointed  agent  and  surveyor  of  au  insur- 
ance company  and  authorized  to  take  applications,  and  re- 
ceive the  cash  percentage  thereon,  giving  certificates  of 
such  receipts,  the  money  to  be  refunded  in  case  of  non-ap- 
proval by  the  directors,  is  not  thereby  authorized  to  make 
contracts  for  insurance.  Insurance  Co.  v.  Johnson,  23  Penn. 
St.  72.     1854. 

§  19.  The  president  and  secretary  of  an  insurance 
company  are  the  proper  officers  to  whom  the  preliminary 
proofs  of  loss  are  to  be  presented,  and  if,  after  the  loss, 
and  when  notice  of  it  is  given,  they  promptly  admit  that 
they  had  agreed  to  insure  the  property,  or  to  keep  it  in- 


AGENT. 


37 


sured,  it  is  a  statement  made  in  the  course  of  their  duties, 
and  binds  the  company,  as  much  as  their  certificate  of 
premium  paid  and  of  a  renewal  would  bind  the  company. 
Trustees  Ist  Baptist  Church,  Brooklyn,  v.  Brooklyn  Fire 
Ins.  Co.  18  Barb.  N.  Y.  69.     1854. 

§  20.  An  agent  of  an  insurance  company  for  issuing 
policies  in  their  behalf,  being  also  the  agent  of  another 
company,  reinsured  the  plaintiffs,  with  defendants;  Hekl, 
that  havinw  acted  within  the  general  scope  of  his  author- 
ity in  makmg  this  contract  of  insurance,  he  clearly  bound 
the  defendants,  notwithstanding  he  departed  from  his  in- 
structions; unless  the  plaintiffs  had  notice  that  he  was 
exceeding  his  authority.  Held^  further,  that  the  mere  fact 
of  the  agent  being  also  the  secretary  of  the  plaintiffs  was 
not  to  be  regarded  as  notice  to  the  plaintiffs  that 
he  was  exceeding  his  instmctions.  New  York  Central 
Ins.  Co.  V.  National  Protection  Ins.  Co.  20  Barb.  N.  Y. 
468.     1854.     Keversed,  4  Kern.  N.  Y.  85.     1856. 

,§  21.  If  in  drawing  up  an  application,  the  agent  act 
as  the  agent  of  the  company,  and  neglects  to  incorporate 
in  it  facts  which  were  essential  to  the  validity  of  the 
policy,  when  he  had  promised  the  applicant  so  to  do,  the 
company  would  be  estopped  to  set  up  the  omission,  for 
the  purpose  of  defeating  an  action  brought  on  the  policy. 
Kelly  V.  Troy  Fire  Ins.'Co.  3  Wis.  254.     1854. 

§  22.  Where  the  by-bws  annexed  to  a  policy  of  in- 
surance provide  that  it  is  the  duty  of  the  secretary  of  the 
company  "  to  answer  all  communications  in  behalf  of  the 
company,"  admissions  of  the  secretary  made  in  such  cor- 
respondence, as  to  the  time  and  sufficiency  of  a  notice  of  a 
loss,  bind  the  company.  Troy  Fire  Ins.  Co.  v.  Carpenter, 
4  Wis.  20.     1855. 

§  23.  The  agents  were  furnished  with  blank  policies, 
which  were  to  be  filled  up,  indorsed  and  issued  at  their 
discretion ;  and  their  power,  as  to  the  rate  of  premium, 
the  amount  of  the  risk,  and  the  nature  of  it  was  unlimited. 
The  policy  in  this  case  was  filled  up  and  countersigned  by 
the  agents  on  the  14th  of  October,  but  was  not  delivered, 
nor  was  the  premium  paid  until  the  8th  of  December  fol- 


88 


AGENT. 


T 


lowing,  when  on  demand  of  the  assured,  a  memorandum 
Was  indorsed  on  the  policy  materially  changing  the  risk ; 
Held^  that  these  agents  being  clothed  with  general  powers 
as  to  filling  up  and  issuing  policies,  and  having  authority 
to  make"  an  original  contract  of  insurance  with  terms 
similar  to  those  found  in  this  policy,  had  authority,  before 
the  delivery  of  the  policy,  to  enlarge  from  its  first  draft 
by  a  change  or  modification  of  the  description  of  the  prop- 
erty insured,  so  as  to  embrace  the  case  of  a  building  un- 
finished, but  then  in  process  of  construction ;  and  that  the 
omission  of  the  agents  to  communicate  the  change  made  to 
their  principal,  did  not  afiect  the  liability  of  the  company 
on  the  policy.  Gloucester  Manf.  Co.  v.  Howard  Fire  Ins. 
Co.  5  Gray,  Mass.  497.     1855. 

§  24.  Where  the  aflkirs  of  a  corporation  are  managed 
by  a  board  of  directors,  they  are  the  agents  of  the  cor- 
poration, and  their  acts  are  binding  on  it,  when  they  act 
within  the  scope  of  their  authority,  however  that  author- 
ity may  be  conferred.  Goodwin  v.  United  States  Annuity 
<fe  Life  Ins.  Co.  24  Conn.  591.     1856. 

§  25.  An  insurance  company  is  not  liable  for  rent  of 
office  leased  by  an  agent  where  the  latter  was  only  author- 
ized to  effect  insurances  and  to  sell  shares  of  stock  of  the 
company  for  a  certain  per  cent,  commission.  Brander  v. 
Columbia  Ins.  Co.  2  Grant,  Pa.  470.     1856. 

§  26.  Where  an  agent,  by  a  ^^Titten  api:)ointment, 
was  declared  to  be  "regularly  appointed  as  agent  and 
surveyor  of  the  company,  and  to  be  "  duly  authorized  to 
take  applications  for  insurance ;"  Held,  that  after  the  com- 
pletion and  delivery  of  a  policy,  such  agent  had  no  au- 
thority to  indorse  on  said  policy  an  approval  of  a  sub- 
sequent insurance,  as  that  authority  ^vas  not  included  in 
the  written  aj^pointraent.  Wilson  v.  Genessee  Mut.  Ins, 
Co.  4  Kern.  :N.  Y.  418.  1856.  Reversing  16  Barb.  N.  Y. 
611.     1853. 

§  27.  One  member  of  a  partnership,  who  are  agents, 
has  all  powers  of  firm  to  make  parol  contracts  of  i*^"".a,nce. 


/   t 


AGENT. 


39 


Kennebec  Co.  v.  Augusta  Ins.  &  Banking  Co.  6  Gray, 
Mass.  204.     1856. 

§  28.  If  one  authorized  to  receive  and  forward  appli- 
cations, and  instructed  by  the  company  to  consider  himself 
the  agent  of  the  applicant,  neglects  to  communicate  mate- 
rial facts  to  the  company,  which  have  been  made  known 
to  him  by  the  applicant,  and  the  company  issues  a  policy 
in  ignorance  of  such  facts,  the  neglect  of  such  agent  is  not 
chargeable  to  the  applicant,  nor  does  the  instruction  of  the 
company  to  consider  himself  as  the  agent  of  the  insured, 
make  him  such,  unless  the  insured  choose  to  recognize  him 
as  his  agent.  Beebe  v.  Hartford  Mut.  Ins.  Co.  25  Conn. 
51.     1856. 

§  29.  Where  by  agreement  between  consignor  and 
consignee,  or  where  the  custom  and  usage  of  the  place  re- 
quires the  consignee  to  insure  the  goods,  the  consignee  will 
be  held  liable  for  their  loss  or  damage  by  fire,  although  he 
had  eflfected  no  insurance  upon  them.  Elliot  v.  Ryan,  6 
Lower  Canada,  Q.  B.  Appeal  side,  87.     1856. 

§  30.  An  agent  to  receive  and  forward  applications, 
without  authority  to  issue  policies,  is  the  agent  of  the  in- 
sured, for  whose  mistakes  of  fact  committed  in  the  state- 
ments in  the  application,  the  insured  is  responsible.  But  if 
the  agent  send  a  different  application  than  that  directed 
to  be  sent  by  thfe  assured,  the  company  is  responsible, 
however  inaccurate  such  application  may  be.  Wilson  v. 
Conway  Iiis.  Co.  4  R.  I.  141.     1856. 

§  31.  An  agent  appointed  to  receive  and  forward  ap- 
plications, receive  and  receipt  for  the  premiums,  and  re- 
turn policies  to  the  assured,  has  no  authority  to  bind  the 
company  to  issue  a  policy.  Chase  v.  Hamilton  Mut.  Ins. 
Co.  22  Barb.  N.  Y.  527.     1856. 

§  32.  Where  an  agent  of  one  company  was,  unknown 
to  that  company,  also  the  secretary  of  another,  and  rein- 
sured the  company,  of  which  he  was  the  secretary,  in  the 
company  of  which  he  was  the  agent ;  Jleld,  that  the  policy 
was  made  under  circumstances  which  would  enable  the 
company,  of  which  he  was  the  agent,  to  avoid  it,  upon  the 


40 


AGENT. 


principles  of  equity — and  as  it  was  sought  to  be  enforced 
m  a  court  where  these  principles  were  amono-  the  grounds 
of  decision,  the  contract  must  be  held  invalid.  New  York 
Central  Ins.  Co.  v.  National  Protection  Ins.  Co.  4  Kern. 
N.  Y.  85.     1856. 

§  33.  "Where  a  company  received  an  application  for 
insurance  from  P.  and  issued  a  policy  thereupon,  and  sub- 
sequently appointed  P.  their  agent,  taking  from  him  a 
bond  dated  prior  to  the  insurance;  Held^  that  the  com- 
pany must  be  regarded  as  intending  to  ratify  P.'s  agency 
in  the  transaction.  Fanners'  Mut.  Fire  Ins.  Co.  v.  Marshall, 
29  Vt.  23.     1856. 

§  34.  The  defendants,  the  factors  of  the  plaintiff, 
effected  insurance  on  their  stock  of  tobacco,  and  other 
^merchandise,  in  four  different  companies.  Some  of  the 
o^ies  were  for  six  months,  others  for  a  year,  and  at 
.1' client  rates.  The  rate  of  insurance  was  equal  to  \  of 
one  per  cent,  per  month.  The  plaintiff  in  the  accounts 
Vr'ndervH^  of  sales  of  tobacco,  was  charged  \  of  one  per 
cent,  pt  r  nonJi  for  the  insurance.  Held^  that  the  defend- 
ants were  not  to  be  considered  as  the  plaintiffs  agents  in 
the  insurances  they  had  effected,but  were  to  be  considered 
as  being  themselves  the  insurers  of  the  plaintiff  at  the 
rate  of  \  of  one  per  cent,  per  month,  and  as  having  rein- 
sured at  the  best  terms  they  could  obtain  in  the  different 
insurance  offices  in  the  city.  Miller  v.  Tate,  12  La.  An. 
160.     1857. 

§  35.  Where  an  agent,  whose  duty  it  is  to  procure 
insurance  for  his  principal,  neglects  to  do  so,  he  will  be 
responsible  for  any  loss  that  may  residt  from  his  neglect. 
Keane  v.  Brandon,  12  La.  An.  20.     1857. 

§  36.  An  affent,  authorized  to  receive  and  forward 
applications  to  the  company,  and  furnished  with  printed 
blanks  therefor,  has,  as  incidental  to  such  power,  author- 
ity to  make  all  necessary  explanations  of  the  meaning  and 
effect  of  the  terms  employed  by  the  company  in  their  in- 
terrogatories, and  to  agree  with  the  applicant  as  to  the 
terms  which  he  shall  employ  to  express  the  facts  stated 


.^^^ 


i 


AGENT. 


41 


K 


■^' 


f 


i 


by  him  in  answer  to  the  interrogatories.  In  filling  up  ap- 
plication in  answer  to  the  question,  "  Is  there  a  watch  on 
the  premises  during  the  night?"  applicant  said  no,  and 
then  went  on  to  state  that  there  was  a  watch  in  the  ad- 
jacent shop,  who  would  be  likely  to  see  if  anything  were 
wrong,  and  agent  said  he  M'as  a  watch,  and  so  stated  in 
application.  On  a  petition  in  chancery  to  correct  the 
mistake,  relief  was  granted.  Also  mistake  as  to  a  common 
clock,  being  a  watch  clock,  made  l)y  agent,  was  held  to  be 
purely  a  mistake,  not  affecting  the  policy.  Malleable  Iron 
Works  V.  Phcenix  Ins.  Co.  25  Conn.  465.     1857. 

§  37.  One  of  the  plaintiffs  requested  V.  C.  who  was 
defendants'  agent,  "to  receive  applications  and  forward 
them  to  the  defendants,"  to  take  the  application  and  for« 
ward  it  to  the  defendants.  V.  C.  was  then  about  half  a 
mile  from  the  plaintiffs'  house  and  there  filled  in  the 
heading  of  the  application,  and  inserted  the  items  of  the 
property  which  the  plaintiffs  desired  to  insure,  and  the 
plaintiff,  with  whom  V.  C.  did  the  business,  signed  the 
plaintiffs'  name  to  the  application.  No  conveniences  were 
there  for  writing,  and  v.  C.  then  left,  saying  he  would  fill 
out  the  rest  of  the  application  when  he  got  where  he  could 
write.  Nothing  was  said  between  the  plaintiffs  and  V.  C. 
about  incumbrances  on  the  property  to  be  insured,  nor 
was  there  any  question,  in  application  concerning  incum- 
brances, but,  after  the  latter  had  gone  off  with  tne  appli- 
cation, he  inserted  in  it  the  statement,  "  There  is  no  in- 
cumbrance except  the  Petrie  mortgage."  This  statement 
was  in  fact  untrue,  there  being  besides  the  Petrie  mort- 
gage another  one  for  $4,000.  Held^  that  the  plaintiffs  were 
responsible  for  all  that  V.  C.  afterwards  inserted  in  the 
application,  although  one  condition  of  the  policy  reqirtred 
the  survey  to  state  materials,  distance  of  buildings,  loca- 
tion and  character  of  same,  &c.,  "  for  the  correctness  of 
which  the  company  is  responsible,  if  made  by  a  duly  au- 
thorized agent.'     STni^li  v    TTlnn-kirA  Tiisi    0,i\    9n  Rorlk   IV 

497.     1857. 


Smith  V.  Empire  Ins.  Co.  25  Barb.  N.  Y. 


§  38.    Where  a  sub-agent  or  surveyor  forwarded  an 
application  for  insurance  on  his  own  property  to  a  general 


ii 


42 


AGENT. 


agent  empowered  to  issue  policies  in  "behalf  of  the  defend- 
ant company,  and  the  property  was  destroyed  before  the 
receipt  of  the  application  by  such  general  agent,  who  was 
also  informed  of  the  loss  before  taking  any  action  upon 
such  application,  and  afterwards  made  out,  and  delivered 
a  policy  to  such  sub-agent,  it  was  held^  that  there  was  no 
contract  at  the  time  ot'  the  loss,  nor  any  before  the  loss 
was  known  to  the  agent,  and  that  such  agent  had  no  au- 
thority to  enter  into  agreements  to  pay  for  losses  already 
occurred.  Bentley  v.  Columbia  Ins.  Co.  17  N.  Y.  421. 
1858.    Affirming  19  Barb.  N.  Y.  595.     1855. 

§  39.  Where  a  sub-agent  of  an  insurance  company 
was  empowered  to  take  and  secure  application  for  the 
company  and  forward  the  same  to  an  a^ent  entrusted  with 
blank  policies  to  be  issued,  and  to  make  insurances  bind- 
ing, until  such  agent  should  approve  or  disapprove  them ; 
Ileld^  that  such  sub-agent  had  no  power  to  take  an  appli- 
cation from  himself  for  an  insurance  on  his  own  property 
so  as  to  bind  the  company.  Bentley  v.  Columbia  Ins.  Co. 
19  Barb.  N.  Y.  595.  1855.  Affirmed  in  17  N.  Y.  421. 
1858. 

§  40.  Where  the  president  of  an  insurance  company 
was  authorized  by  the  bj^-laws  "to  adjust  and  pay  all 
losses ;"  Held^  that  authority  to  use  the  means  of  the  com- 
pany for  that  purpose  was  implied,  and  if  these  means  were 
negotiable  notes,  in  order  to  use  and  transfer  them,  they 
must  be  indorsed,  and  authority  of  the  president  to  indorse 
them,  and  that  he  had  been  in  the  habit  of  indorsing  them, 
might  be  sho-wn  by  parol  evidence.  Baker  v.  Cotter,  45 
Me.  236.     1858. 

§  41.  Two  partners  were  insured  on  their  stock  of 
tools.  Subsequently  one  partner  sold  out  all  his  interest 
in  the  property  to  the  other,  and  an  agent  of  the  company, 
who  was  only  authorized  to  take  applications  for  insurance 
and  transmit  them  to  the  company,  but  having  no  au- 
thority to  make  binding  contracts,  was  notified  of  this 
change,  and  said  that,  in  his  opinion,  it  made  no  difference, 
and  need  not  be  notified  to  the  company.  The  company 
was  never  notified  of  the  change;  Held,,  that  plaintiff  could 


AGENT. 


48 


not  recover  without  showing  an  assent  of  the  company  to 
the  assignment,  and  that  the  notice  to  the  agent  was  not 
sufficient.  Tate  v.  Citizens'  Mut.  Fire  Ins.  iCo.  13  Gray, 
Mass.  79.     1859. 

§  42.  The  by-laws  of  a  mutual  insurance  company 
provided  that  the  assured  should  pay  his  premium  and 
give  his  deposit  note  before  the  policy  should  be  delivered, 
and  the  directors,  of  whom  assured  was  one,  passed  a  vote 
that  the  premiums  on  all  policies  should  be  payable  within 
thirty  days  from  their  date,  and  if  not  paid  within  sixty 
days  the  policy  should  be  considered  as  canceled.  A 
policy  on  brick  dwelling  house  was  made  out  for  one  of 
the  directors,  and  with  consent  of  the  compajiy,  assigned 
to  the  plaintiff  as  mortgagee ;  a  short  time  before  the  ex- 
piration of  such  policy  the  president  made  an  oral  agree- 
ment with  the  director  to  renew  it,  and  make  it  payable 
in  case  of  loss  to  the  mortgagee,  and,  in  pursuance  of  such 
agreement,  the  renewal  was  made  out  March  1st,  1857,  and 
signed  by  the  proper  officers,  but  was  never  delivered,  the 
premium  not  having  been  paid  or  a  deposit  note  given. 
The  president  and  secretary,  several  times  before  the  fire, 
which  occurred  in  June,  1857,  requested  the  director  to 
pay  the  premium  and  take  the  policy,  but  did  not  tell  him 
that  the  policy  would  be  canceled  if  he  did  not  do  so. 
The  agent  of  the  plaintiff  also  called  on  the  president  to 
inquire  if  the  policy  >had  been  renewed,  and  the  president 
told  him  that  it  had  been  renewed,  and  that  mortgagee 
might  consider  herself  insured,  and  need  not  give  herself 
any  further  trouble  about  it.  Held,  that  the  president 
was  but  a  special  agent  of  the  company,  and  could  not  by 
his  agreements  effect  insurance  on  tenns  forbidden  by  the 
by-laws,  and  could  no  more  bind  the  company  by  his  rep- 
resentations beyond  the  scope  of  his  authority,  than  by  his 
agreements ;  and  that  the  plaintiff  who  was  the  assignee, 
could  not  recover,  although  she  did  not  know  of  the  vote 
of  the  directors  until  after  the  fire.  Baxter  v.  Chelsea 
Mut.  Fire  Ins.  Co.  1  Allen,  Mass.  294.     1861. 

§  43.     Though,  as  between  the  principal  and  agent, 
the  powers  of  the  agent  may  be  limited,  it  still  frequently 


44 


AOENT. 


occurs  that  the  powers  of  the  agent  are  not  thus  limited 
where  the  rights  of  third  persons  intervene,  if  the  principal 
has  so  acted  as  to  induce  such  third  persons  to  act  upon  the 
assumption  of  more  extended  or  unlimited  powers.  And 
whether  the  comjiany  did  thus  hold  their  aajent  out,  is  a 
question  of  fact  for  the  jury.  Keenan  v.  Missouri  State 
Mut.  Ins.  Co.;  and  Kyder  v.  Same,  12  Iowa,  126.     1861. 

§  44.  When  the  insui'ance  company  is  a  foreign  cor- 
poration, to  say  that  notice  to  a  resident  agent  would  not 
be  good  and  binding  on  the  company,  would  be  in  conflict 
with  the  spirit  of  the  statute  of  Iowa  (Acts  of  1857,  p. 
207,  s.  9),  and  to  the  niles  of  the  common  law  governing 
the  rights,  duties  and  responsibilities  of  principal  and 
agent.  Keenan  v.  Missouri  State  Mut.  Ins.  Co. ;  and  Ryder 
V.  Same,  12  Iowa,  126.     1861. 

§  45.  Knowledge  by  an  agent  of  facts  working  a  for- 
feiture of  the  policy,  in  order  to  bind  the  company,  must- 
have  been  communicated  to  him  as  such  agent,  and  not  by 
mere  rumors  and  talk  upon  the  street  corners.  Keenan  v. 
Missouri  State  Mut.  Ins.  Co.;  and  Ryder  v.  Same,  12 
Iowa,  126.     1861. 

§  46.  Where  certain  statements  respecting  the  title 
were  made  to  H.  an  agent  of  defendants,  and  the  latter 
claimed  that  H.  was  their  agent  only  for  certain  definite 
purposes,  and  that  he  had  no  authority,  as  such,  to  fill  out 
applications  for  parties  applying  for  insurance;  but  de- 
fendants had  recognized  him  in  their  policies  as  their 
agent,  though  there  was  no  written  evidence  of  the  extent  of 
his  authority,  and  the  court  upon  all  the  evidence,  sub- 
mitted the  question  as  to  the  extent  of  his  authority, 
wholly  as  one  of  fact,  to  the  jury ;  Hehl^  that  this  course 
was  correct.  Hough  v.  City  Fire  Ins.  Co.  29  Conn.  10. 
1860. 

§  47.  An  insurance  company  will  not  be  allowed  to 
take  advantage  of  the  mistakes  or  omissions  of  its  agents, 
notwithstanding  the  rule  that  all  parol  statements  and 


t 


i 


AGENT. 


45 


negotiations  are  merged  in  the  written  compact. 
Park  Fire  Ins.  Co.  16  Wis.  241.     1862. 


Beal 


4> 


§  48.  Where  a  policy  had  been  issued  in  the  name  of 
an  insurance  company  by  a  person  acting  as  its  agent,  but 
whose  authority  so  to  act  was  not  shown,  and  such  policy 
had  been  renewed  by  an  authorized  agent  of  the  company ; 
Held,  that  the  company  had  ratified  the  act  of  the  party 
issuing  the  policy,  and  that  his  acts  and  declarations  at 
the  time  the  risk  was  taken  were  admissible  in  evidence 
against  the  company.  Beal  v.  Park  Fire  Ins.  Co.  16  Wis. 
241.     1862. 

§  49.  If  a  policy  of  insurance  has  ceased  to  have  any 
effect,  by  -uason  of  the  insured  having  kept  prohibited 
articles  in  the  premises  insured,  a  promise  by  the  insurer's 
agent,  having  authority  to  adjust  and  pay  losses,  with 
knowledge  that  the  prohibited  articles  were  kept  in  the 
house  at  the  time  of  the  fire,  will  not  bind  his  principal. 
Phoenix  Ins.  Co.  v.  Lawrence,  4  Mete.  Ky.  9.     1862. 

§  50.  An  agent  having  general  authority  to  insure 
the  property  of  his  principal,  is  not  thereby  authorized  to 
insure  in  a  mutual  company,  thereby  making  his  principal 
a  member  and  an  insurer  of  others.  White  v.  Madison, 
26  N.  Y.  117.    1862. 

§  51.  Where  it^  appeared  in  an  action  upon  a  policy 
of  insurance  that  the  insurance  company  had  been  in  the 
habit  of  furnishing  their  agent  with  blank  policies  and  re- 
newal receipts,  signed  by  their  president  and  secretary,  to 
be  filled  up  by  such  agent  when  issued ;  and  that  the  par- 
ticular receipt  used  in  this  instance,  when  so  furnished  to 
the  agent,  contained  a  statement  that  it  was  not  valid,  un- 
less countersigned  by  him ;  Held,  that  the  company  could 
not  question  the  general  authority  of  the  agent  to  renew 
policies.  Carroll  v.  Charter  Oak  Ins  Co.  40  Barb,  N.  Y. 
292.     1863. 

§  52.  A  general  agent  for  effecting  insurances  in  be- 
half of  n  company  has  full  power  to  insure,  to  renew,  and 
to  receiv^e  notice  of  other  insurances ;  and  his  giving  a  re- 
newal receipt  and  subsequent  acceptance  of  the  premium, 


46 


AGENT. 


/ 


\ 


with  notice  of  a  breach  in  respect  to  other  insui'ances,  is 
as  effectual  a  waiver  of  the  breach  as  if  the  premium  had 
been  paid,  and  he  had  accepted  it  with  notice,  at  the  time 
when  the  renewal  receipt  was  issued.  Carroll  v.  Charter 
Oak  Ins.  Co.  40  Barb.  N.  Y.  292.     1863. 

§  53.  A  local  agent  of  an  insurance  company  issued 
a  policy  upon  the  interest  of  a  mortgagee  in  certain  prop- 
erty. The  agent  had  been  instructed  by  the  co  ny  not 
to  take  applications  upon  mortgage  interests.  _  .J,  that 
the  insured  could  not  be  prejudiced  by  the  fact  that  such 
instructions  had  been  given ;  he  having  no  knowledge  of 
such  a  limitation  of  the  powers  of  the  agent.  Woodbury 
Savings  Bank  v.  Charter  Oak  Ins.  Co.  31  Conn.  517. 
1863. 

§  54.  The  local  agents  of  insurance  companies,  who 
are  authorized  to  procure  and  forward  applications  for  in- 
surance, are  deemed  the  agents  of  the  companies  and  not 
of  the  applicants,  so  far  as  any  mistakes  of  the  application 
made  by  them  or  by  the  applicant  under  their  direction^ 
are  concerned ;  and  an  agent  employed  by  such  a  local 
agent,  in  pursuance  of  a  custom  known  to  and  '  nroved 
by  the  company,  to  solicit  and  forward  to  him  a]  \tions 
^  for  insurance,  stands  in  the  same  relation  to  the  c^uipany 
as  to  such  mistakes.  Woodbury  Savings  Bank  v.  Charter 
Oak  Ins.  Co.  31  Conn.  517.     1863. 

§  55.  If  an  insurance  company,  on  notice  of  loss,  re- 
fer the  insured  to  their  resident  agent  for  settlement,  and 
instruct  the  agent  to  procure  a  statement  of  the  loss,  he  is 
thereby  invested  with  full  authority  to  receive  such  state- 
ment, and  to  extend  the  time  for  furnishing  it,  and  if  given 
within  the  time  required  by  the  agent,  tne  condition  in 
the  policy  requiring  it  to  be  made  within  a  less  time,  is 
not  broken.  Lycoming  County  Mut.  Ins.  Co.  v.  Schollen- 
berger,  44  Penn.  St.  259.     1863. 

§  56.  Where  an  agent,  by  the  power  of  attorney  ap- 
pointing him,  was  authorized  to  "make  insurance  by 
policies  of"  the  defendant  company,  to  "renew  the  same, 
and  to  indorse  upon  policies  issued  by  him,  permission  to 


> 


AGENT. 


47 


.> 


the  assured  to  vary  the  risk,  according  to  the  rules  and 
instructions  he  shall  from  time  to  time  receive  fi*om  said 
company,  and  all  policies  issued  by  said  agent,  shall  be  to 
all  intents  valid  and  binding  upon  said  company  ; "  and, 
upon  the  receipt  of  an  additional  premium  fixed  by  him, 
such  agent  varied  the  risk  by  a  written  permission  to  run 
the  factory  insured  "  day  and  night,"  until  the  expiration 
of  the  policy,  without  prejudice ;  and  the  factory  was 
burned  in  the  night ;  Held^  that  in  the  absence  of  any 
proof  that  the  agent  had  violated  any  rules  or  regulations 
he  may  have  received  from  the  company,  the  permit  to  run 
nights  was  binding  on  the  company,  and  the  agent  had 
ample  pown  to  waive  such  previous  running  Avhicli  had 
come  to  Lis  knc  wledge.  North  Berwick  Cq.  v.  Nev/  En- 
gland F.  «fc  M.  Ins.  Co.  52  Me.  336.     1804. 

■  §  57.  The  possession  and  use  by  an  agent,  of  an  in- 
surance company's  certificates  of  renewal,  together  with 
the  exercise  of  that  authority  in  other  instances,  indicate 
that  the  power  of  renewing  and  continuing  insurances  has 
been  conferred  upon  >ucli  agent.  Post  v.  ^tna  Ins.  Co. 
43  Barb.  N.  Y.  351.     18G4. 

§  58.  That  an  individual  is  authorized  to  accept  risks, 
to  agree  upon  and  settle  the  terms  of  in3urance,  and  to 
carry  them  into  effect  by  issuing  and  renewing  policies,  on 
behalf  of  an  insurance  company,  is  sufficient  to  constitute 
him  a  general  agent  for  the  company,  at  the  place  where 
his  business  as  such  agent  is  transacted  ;  and  he  can  as 
well  exercise  his  authority  ot  renewing  and  continuing  a 
policy  which  has  already  expired,  as  by  making  and  issu- 
ing a  new  one.  Post  v.  ^tna  Ins.  Co.  43  Barb.  N.  Y. 
351.     18G4. 

§  59.  An  action  may  be  maintained  on  a  premium 
note  to  recover  assessments  where  the  application  contains 
an  express  agreement  on  the  part  of  the  applicant,  that 
"  the  company  shall  not  be  bound  by  any  act  done,  or 
statement  made  to,  or  by  any  agent  or  others,  not  con- 
tained in  the  application,"  and  the  policy  is  issued  upon 
condition  that  "every  insurance  agent,  broker,  or  other 
person;  forwarding  applications  or  receiving  premiums,  is 


48 


AGENT. 


-A 


the  agent  of  tLe  applicant,  and  not  of  the  company,"  al- 
though the  defendant  was  induced  to  take  out  the  policy 
by  fraudulent  misrepresentations,  as  to  the  condition  of 
the  company,  by  one  who  had  acted  as  its  general  agent. 
Shawmut  Mut.  Fire  Ins.  Co.  v.  Stevens,  9  Allen,  Mass. 
332.     1864. 

§  60.  Mere  knowledge  of  an  agent  of  an  insurance 
company  of  acts  which  would  avoid  a  policy  issued  by  his 
principal,  without  objection  thereto,  does  not  bind  the 
company.  Ayers  v.  Hartford  Fire  Ins.  Co.  17  Iowa,  176. 
1864.  ■,  • 

§  61.  An  agent  of  a  mutual  insurance  company, 
whose  duty  is  to  take  surveys,  receive  applications  for  in- 
surance, examine  the  circumstances  of  a  loss,  approve 
assignments,  and  receive  assessments,  is  not  authorized  to 
accept  notice  of  over  insurance,  or  waive  its  consequences. 
Mitchell  V.  Lycoming  Mutual  Ins.  Co.  51  Penn.  St.  402. 
1865. 

§  62.  An  insurance  agent,  having  the  power  to  re- 
ceive premiums,  will  be  presumed  to  have  authority  to 
give  peimission  to  a  holder  of  a  policy  to  remove  the 
property  insured  to  another  locality.  It  is  sufficient  that 
the  party  acting  as  agent  was  the  authorized  agent  of  the 
company.  Having  indorsed  in  writing  on  the  policy,  the 
consent,  for  an  enhanced  premium,  for  the  removal  of  the 
property,  the  company  should  be  held  to  it  and  bound  by 
it.  New  England  Fire  &  Marine  Ins.  Co.  v.  Schettler,  38 
111.  166.     1865. 

§  63.  "Where  a  party  applying  to  the  agent  of  an  in- 
surance company  for  insurance,  mentions  that  he  has  other 
insurance,  specifying  it,  he  ought  not  to  be  prejudiced  by 
the  neglect  of  the  agent  to  note  such  insurance  on  the 
policy.  New  England  Fire  tfe  Marine  Ins.  Co.  v.  Schettler, 
38  111.  166.     1865. 

§  64.  Although  in  the  printed  terms  of  a  policy  it  is 
stated  that  no  policy  will  be  considered  binding  until  the 
premium  is  paid,  yet  a  general  agent  of  the  company  may 


AGENT. 


49 


waive  such  conditions  and  give  a  short  credit.    Boehen  v. 
WiUiamsburgh  City  Ins.  Co.  35  N.  Y.  131.     1866. 

§  65.  A  notice  to  the  agent  of  an  insurance  company 
of  facts  material  to  the  risk,  is  notice  to  the  company, 
People's  Ins.  Co.  v.  Spencer,  53  Penn.  St.  353.     1866. 


■I 


§  66.     The  local  agent  of  an  insurance  company,  hav- 
ing power  to  pass  upon  applications  for  insurance,  and 
issue  policies  without  forwarding  the  application  or  sub-  "Z 
mitting  the  matter  to  the  company,  upon  receiving  an  ap- 
plication, was  informed  of  the  condition  of  the  ownership 

of  the  property,  but  failed  to  take  down  correctly  the   

facts  stated,  and  the  policy  was  thereupon  issued  by  such 
agent  and  received  by  the  assured  in  ignorance  of  any 
mis-statement  or  omission ;  Hdd^  that  the  company  was 
bound  by  the  act  of  the  agent,  and  could  not  defeat  a 
recovery  on  the  ground  that  the  agent  did  not  correctly 
state  in  the  policy  the  facts  concerning  the  interest  or 
title  of  the  assured.  Ayres  v.  Home  Ins.  Co.  21  Iowa,  185. 
1866. 

§  67.  The  secretary  of  an  insurance  company  is  pre- 
sumed to  be  the  official  agent  to  carry  into  eflfect  the  votes 
and  directions  of  those  who  have  the  management  of  its 
aifairs,  unless  the  contrary  appears.  Leary  v.  Blanchard, 
48  Me.  269.     1860. 

§  68.  The  authority  of  the  president  of  an  insurance 
company  to  make  a  valid  indorsement  of  its  notes,  may  be 
shown  without  proof  of  a  formal  vote  of  the  directors  for 
that  purpose  That  he  was  iu  the  habit  of  so  doing,  and 
that  his  indorsements  had  been  recognized  by  the  com- 
pany is  sufficient.  Topping  v.  Bickford,  4  Allen,  Mass.  120. 
1862. 

§  G9.  An  agent,  authorized  to  "  effect  insurance,"  and 
"  for  this  purpose  to  survey,  fix  premium,  issue  policies 
signed  by  president  and  secretary  and  countersigned  by 
himself,"  has  power  to  make  the  preliminary  oral  contract 
as  well  as  to  issue  the  policy.  Sanborn  v.  Fireman's  Ins. 
Co.  16  Gray,  448.     1860. 

4 


r 


60 


AGENT. 


§  70.  An  agent  "to  take  applications  for  insurance "^ 
has  not  exhausted  his  authority  on  receiving  a  blank  appli- 
cation signed  by  the  api)licant,  with  verbal  answers ;  but  acts 
within  the  scope  of  his  powers  in  filling  up  the  blank ; 
and  if  he  misstate  the  answer  as  to  incumbrances,  the 
company  cannot  escape  the  estoppel  to  set  up  its  own 
error,  on  the  artificial  and  unwarranted  assumption  that  he 
is  the  assured's  agent  (quaere — is  this  meant  to  be  doubted 
in  Le  Roy  v.  Ins.  Co.  6  Hand.  80  ?).  Rowley  v.  Empire 
Ins.  Co.  36  N.  Y.  550.     1867. 

§  71.  The  question  of  an  agent's  authority  cannot  be 
raised  for  the  first  time  in  a  court  of  errors.  Wolfe  v. 
Security  F.  Iris.  Co.  39  K  Y.  49.     1868. 

§  72.  Per  Holmes.,  J.  Foreign  insurance  companies 
may  justly  be  held  bound  to  the  fullest  extent  for  the  acts 
of  their  agents  representing  them  abroad.  Parties  are  in- 
duced to  rely  upon  them  as  having  competent  authority 
to  transact  the  whole  business  they  undertake.  Frank- 
lin V.  Atlantic  F.  Ins.  Co.  42  Mo.  456.     1868. 

§  73.  If  the  agent  has  simply  power  to  receive  and 
forward  applications,  and  the  applicant  knows  or  is  bound 
to  know  this,  and  that  the  application  provides  that  it  is 
correct  and  a  warranty,  he  must  see  that  the  statements 
therein  are  true.  But  if  the  agent  undertakes  to  fill  up 
the  application,  and,  receiving  correct  answers,  he  misleads 
the  applicant  into  supposing  they  are  correctly  written 
down  and  prevents  him  from  knowing  the  contrary,  the 
company  is  estopped  by  his  acts.  Bartholomew  v.  Mer- 
chants' Fire  Ins.  Co.  25  Iowa,  507.     1868. 

§  74.  An  agent  simply  to  solicit  and  forward  appli- 
cations has,  it  would  seem,  no  power  to  bind  the  company 
by  verbal  permission  to  keep  gunpowder  in  violation  of 
the  policy — the  company  not  having  permitted  his  holding 
himself  out  as  general  agent.  Bartholomew  v.  Merchant^ 
Fire  Ins.  Co.  25  Iowa,  507.     1868. 

§  75.  An  agent,  with  power  to  insure,  to  fix  pre- 
miums, consent  to  increase  of  risk  and  change  of  occupa- 
tion, or  to  cancel  policies  therefor,  is  a  general  agent,  and 


i 


AGENT.  51 

can  biijd  the  company  within  his  general  authority, 
though  he  violates  limitations  unknown  to  assured.  He 
can  dispense  with  conditions  or  waive  forfeitureu  for 
breach  of  them ;  such  powers  being  necessarily  incidenta 
to  his  general  authority,  and  notice  of  increase  of  risk 
obtained  by  his  examination  and  supervision  of  the  prop- 
erty is  notice  to  the  company.  Viele  v.  Germania  Ins.  Co. 
26  Iowa,  9.     1868. 

§  76.  Semble.  That  any  one  bringing  risks  to  the 
company  for  a  percentage  is  an  agent.  Meadowcraffc  v. 
Standard  Fire  Ins.  Co.  61  Pa.  St.  91.     1868. 

§  77.  An  agent,  authorized  to  make  and  revoke  in- 
surances, is  the  proper  person  to  give  conselit  to  further 
insurance.  Carrugi  v.  Atlantic  Fire  Ins.  Co.  40  Ga.  135. 
1869. 

§  78.  A  soliciting  agent's  authority  to  take  applica- 
tions carries  with  it  the  legal  implication  of  authority  to 
fill  up  the  application  and  do  all  things  needful  to  perfect 
it — such  as  determimng  what  words  will  describe  the 
title. 
1869. 


Combs  V.  Hannibal  Savings  <fe  Ins.  Co.  43  Mo.  148. 


§  79.  A  local  agent  authorized  to  receive  proposals, 
make  insurances,  assent  to  transfers  and  conduct  the  busi 
ness  of  his  agency,  \ is  to  be  considered  a  general  agent, 
and  may  bind  the  company  within  the  scope  of  such  gen 
eral  authority,  though  limited  by  private  instructions  un 
known  to  the  assured.  Printed  circulars,  advertisements, 
or  letters  sent  by  the  company  ^o  the  agent,  are  adm  ^sible 
as  evidence  of  ratification  of  his  acts  or  to  show  c  )}iduct 
inducing  the  public  to  believe  such  power  has  been  con- 
ferred. Qucet'e,  whether  such  agent  could  bind  the  com- 
pany in  case  of  loss  by  accepting  the  assured's  draft  be- 
fore settlement  of  loss.  Alman,  Miller  &  Co.  v.  Phoenix 
Ins.  Co.  27  Iowa,  203.     1869. 

§  80.  Though  an  agent  have  but  local  authority,  yet 
if  he  is  entrusted  with  the  delivery  of  policies  without 
first  submitting  the  proposal  to  the  company,  a  refusal  to. 


52 


AGENT. 


'  » 


pay  a  loss  cannot  be  based  upon  private  instructions, 
limiting  his  power  by  requiring  him  to  notify  the  com- 
pany of  other  insurance  or  obtam  its  indorsement  thereof. 
Kenton  Ins.  Co.  v.  Shea  &  O'Connell,  6  Bush,  174. 
1869. 

§  81.  That  the  general  agent  can  waive  a  forfeiture 
arising  from  delay  or  defect  in  the  preliminary  proofs. 
Owen  V.  Farmers'  Joint  Stock  Ins.  Co.  57  Barb.  518. 
1869. 

§  82.  An  agent  to  receive  the  application,  make  the 
survey  and  remit  it  to  the  general  agent,  receive  the 
policy  and  collect  the  premium,  whatever  his  authority 
before  the  application  is  closed,  has  no  power,  after  the 
arrival  of  the  policy,  to  waive  any  of  its  conditions ;  to 
wit,  that  requiring  notice  of  other  insurance.  Healey  v. 
Imperial  Fire  Ins.  Co.  5  Nevada,  268.     1869. 

§  83.  An  agent,  having  only  authority  to  receive  ap- 
plications, collect  and  transmit  premiums,  and  never  held 
out  to  possess  more,  cannot  maKe  a  contract  of  insurance 
or  bind  the  company  by  representing  that  the  policy  will 
take  effect  fi'om  the  date  of  the  application.  Winnesheik 
Ins.  Co.  V.  Holzgrafe,  53  111.  516.     1870. 

§  84.  A  member  of  the  insured  fiim,  to  whom  his 
partner  has  sold  out,  was  told  by  the  company's  agent 
that  a  transfer  of  the  policy  was  not  necessary ;  but  the 
agent  being  still  applied  to,  j)romised  to  reinsure  him,  and 
took  the  papers  for  that  purpose ;  and  returning  them  in 
a  few  days,  collected  the  premimn.  After  the  fire,  the 
papers  were  found  not  to  be  a  new  policy,  but  a  renewal 
of  the  old  without  indorsement  of  consent  to  the  transfer, 
which  was  required  therein.  IleM,  every  agent  is  pre- 
sumed to  have  power  naturally  incident  to  his  agency, 
and  it  may  reasonably  be  presumed  that  a  person  held 

out  as  "  the  agent  of  the company  "  has  autliority  to 

act  for  the  company  in  dispensing   with   a  formality. 
Pierce  v.  Nashua  Fire  Ins.  Co.  50  N.  H.  297.     1870. 

§  85.    The  general  agent  of  a  foreign  insurance  com- 


i' 


AGENT. 


sa 


pany,  who  fixes  rate  of  premium,  has  policies  in  blank^ 
which  he  fills  out  and  issues,  though  he  cannot  modify 
the  essential  character  of  the  contract,  can  waive  or  modify 
the  conditions  as  to  notice  of  loss  and  preliminary  proof,, 
for  this  makes  no  change  in  the  substance  of  the  contract ; 
and  private  letters  to  him  limiting  his  power,  not  shown 
to  the  assured,  are  inadmissible  in  evidence.  Eastern. 
R.  R.  Co.  V.  Relief  Fire  Ins.  Co.  105  Mass.  570.     1870. 

§  86.  There  being  latent  ambiguity  in  the  description 
in  the  policy,  as  to  which  building  was  meant,  if  in  get- 
ting the  insurance  the  plaintiff  told  the  agent  the  barn 
was  the  building  intended,  though  only  an  agent  to  re- 
ceive  and  transmit  applications,  he  was  an  agent  to  re- 
ceive and  transmit  such  notice,  and  the  defendants  are 
affected  by  the  communication,  if  such  notice  is  necessary.. 
Lycoming  Mut.  Ins.  Co.  v.  Sailer,  67  Pa.  St.  108.     1870. 

§  87.  Assured  having  applied  for  insurance,  the  agent,, 
without  consulting  assured,  fills  up  an  application  and 
signs  assured's  name  to  it — it  is  not  to  be  admitted  that 
.  he  was  the  assured's  agent.  It  was  for  the  jury  to  say 
whether  the  plaintiffs  did  not  rather  apply  to  the  agent 
to  be  insured  than  to  act  as  their  agent  to  get  them  in- 
sured, and  any  mistakes  or  omissions  in  such  application 
are  not  those  of  the  assured  when  the  company's  agent  wrote 
the  same  relying  on  hi^  own  knowledge.  Commercial  Ins. 
Co.  V.  Ives,  56  111.  402.    1870. 

§  88.  The  agent  applied  to  for  additional  insurance 
wrote  to  another  agent  at  another  place ;  the  second  agent 
replied  that  a  diagram  and  application  might  be  made  out 
and  he  would  forward  it  to  his  company.  The  first  agent 
having  made  out  such  application  without  communicating; 
with  assured  and  sent  it  to  the  second  agent,  by  whom  it 
was  sent  to  his  company,  and  a  policy  was  returned  ta 
the  second  agent  and  by  him  to  the  first,  who  delivered 
it  and  received  the  premium ;  Held,  the  first  agent  must 
be  regarded  as  the  agent  of  the  company  in  this  particular 
case,  though  not  employed  by  them,  and  not  as  assured's 
agent,  notwithstandmg  a  clause  in  the  policy  that  any 
person  other  than  the  assured  who  may  have  procured 


94 


AGENT. 


this  insurance  to  be  taken  bv  this  company,  shall  be 
deemed  the  assured's  agent  and  not  the  company's  under 
any  circumstances  whatever.  Commercial  Ins.  Co.  v.  Ives, 
56  111.  402.     1870. 

§  89.  An  agent,  authorized  to  solicit  and  act  on  pro- 
posals for  insurance  and  to  receive  premiums,  may  be  as- 
sumed by  the  public  to  have  power  to  make  insurances  in 
the  ordinary  way ;  that  is,  to  arrange  the  terms  so  that  on 
the  premium  being  paid  there  is  a  binding  contract ;  and 
he  has  presumptively  authority  to  make  insurances  ver- 
bally, notwithstanding  a  special  restriction  to  insure  by 
policies  countersigned  by  himself. 

Per  Parher,  J.  That  a  written  commission  giving 
one  authority  to  receive  proposals,  make  insurances  by 
policies  countersigned  by  himself,  to  renew  insurances,  as- 
sent to  assignments  and  transfers,  and  do  all  business  per- 
taining to  his  agency,  which  may  be  given  him  from  time 
to  time  by  the  company — does  not  constitute  him  a  gen- 
eral agent  to  bind  the  company  by  insurances,  except  by 
policies  countersigned  by  him.  Ellis  v.  Albany  City  Fire 
Ins.  Co.  4  Lansing,  433.    1871. 

§  90.  An  agent,  alleged  in  the  declaration,  which  the 
answer  does  not  deny,  to  be  authorized  to  issue  and  renew 
poKcies  and  receive  premiums,  is  a  general  agent,  and  may 
waive  conditions ;  and  his  receiving  premium  and  issuing 
renewal  receipt,  after  knowledge  of  a  change  in  the  as- 
sured's title  from  mortgagee  to  owner,  waives  the  condition 
requiring  disclosure  of  such  change  and  indorsement  there- 
of.   Miner  v.  Phoenix  Ins.  Co.  27  Wis.<693.    1871. 

§  91.  An  asent  asks  the  applicant  for  a  survey,  after 
the  delivery  of  the  policy,  declaring  that  he  intends  it  for 
his  private  use ;  it  is  a  serious  question  whether  this  sur- 
vey is  not  the  act  of  the  company  rather  than  of  the 
plaintiff.  But  when  this  paper  is  referred  to  in  a  sub- 
sequent policy  by  a  different  company,  and  made  a  part 
thereof,  the  agent  is  not  an  agent  of  tlie  last  company  in 
any  sense.  Le  Eoy  v.  Market  Fire  Ins.  Co.  6  Hand.  80. 
1871. 


AGENT. 


55 


§  92.  P.  &  S.  were  partners  as  insurance  agents.  P. 
alone  had  a  certificate  of  agency  from  defendants :  both  re- 
ceived applications  and  money  for  and  remitted  to  defend- 
ant. S.  had  written  and  spoken  to  its  ohicers  in  the 
business  of  the  firm,  defendant  knowing  P.  &  S.  were 
partners,  and  this  policy,  when  issued,  was  in  S.'s  posses- 
sion, signed  by  the  ofl&cers  in  blank,  filled  up  by  him  and 
countersigned  by  P.  Heldy  this  is  evidence  under  the  stat- 
ute and  independently  thereof  of  S.'s  authority  to  act  for 
defendant.  That  assured  being  absent  at  time  of  the  loss, 
on  returning  was  told  by  S.  to  make  proofs — that  he  need 
give  no  notice  of  loss.  Proofs  being  given  to  S.,  the  as- 
sured being  afterwards  told  by  P.  that  he  had  sent  them 
to  defendant ;  they  never  having  been  returned  to  assured 
nor  any  objection  made  to  them,  it  was  lield  that  this 
testimony  went  to  show  a  waiver  of  all  defects  of  the 
proofs,  and  8emble^  that  it  is  only  for  the  jury  to  decide 
whether  P.  is  the  sole  agent,  or  whether  S.  is  not  also  an 
agent.  Newman  v.  Springfield  F.  &  M.  Ins.  Co.  17  Minn. 
123.    1871. 

See  Alienation,  §  28.  Application,  11,  17,  18, 19,  20,  21,  28,  29,  80,  50, 
S4,  57,  58,  70.  Arbitration  and  Appraisement,  7.  Assessments,  86.  Assign- 
ment, 10, 11, 14,  47.  Cancellation,  2,  5.  Classification  of  Risks,  8.  Conceal- 
ment, 26,  28.  Consummation  of  Contract,  2,  3, 16,  18,  28.  Description  of 
Property,  11, 13,  28.  Distance  of  other  buildings,  7, 11, 12,  19, 21,  22.  En- 
cumbrance, 6,  8, 14,  20, 22,  25,  27, 32, 43,  45,  46,  49,  52,  53,  54,  55.  Estoppel 
12, 17,  \8,  19,  20.  Evidence,  11,  23,  44,  86,  109,  111,  112.  Foreign  Ins,  Cos., 
4,  22.  Fraud,  4,  5.  Oamishiment  or  Trustee  Process,  6.  Gunpowder,  7.  In- 
crease of  Risk,  20,  45,  46,  52.  Limitation  Clause,  34,  41.  Notice  of  loss,  2, 18. 
Other  Ins.,  20,  23,  32,  37,  38,  46,  48,  53,  61,  72,  78,  81,  85,  112,  120,  121, 132, 
132,  135, 137,  188,  140,  141.  Parol  Contract,  4,  5,  7,  16,  21,  24,  26.  Parol 
Evidence,  2,  3, 14,  15, 17,  21,  26,  38.  Payment  of  Premium,  3,  4,  8,  9, 10,  12, 
22.  Pleading  and  Practice,  51.  Preliminary  Proofs,  39,  31,  66,  69,  70,  76,  80, 
84.  Premium  Notes,  16,  21,  32,  48,  51,  52.  Premium  Notes  in  Advance,  3,  9, 
10.  Reform  of  Policy,  4,  15,  17,  18.  Removal,  7.  Renewal  of  Policy,  15. 
Risk,  51.  Set-oflf,  1, 13.  Title,  60,  68,  64,  68.  Usage,  11.  Value,  13.  Waiver, 
-35.    Warranty  and  Representation,  25. 


ALIENATION. 

§  1.  After  the  issuing  of  the  policy,  the  assured  sold 
and  conveyed  to  one  H.  a  part  of  the  building  insured, 
reserving  a  term  of  seven  years  in  the  premises ;  and  H.  at 
the  same  time  re- conveyed  them  to  the  assured  in  mort- 
gage to  secure  the  purchase  money.  Held^  that  the  trans- 
action was  to  be  considered  as  a  conditional  sale  after  the 
expiration  of  seven  years,  and  that  the  policy  continued 
binding  to  the  extent  of  assured's  interest.  Stetson  v. 
Massachusetts  Ins.  Co.  4  Mass.  330.     1808. 

§  2.  The  policy  contained  a  provision,  that  if  the 
property  should  be  sold  or  conveyed,  in  whole  or  in  part, 
the  policy  should  become  void.  Assured  had  executed 
mortgages  on  the  insured  property,  prior  to  the  insurance, 
which  were  foreclosed  subsequent  to  making  of  policy, 
leaving  the  equity  of  redemption  in  assured  at  date  of  fire. 
Held^  that  assured  had  not  been  divested  of  his  insurable 
interest  by  such  foreclosure  and  sale,  and  that  he  might 
recover  the  whole  amount  of  damage  to  the  property,  not 
exceeding  the  sum  insured.  Strong  v.  Manufacturers'  Ins. 
Co.  10  Pick.  Mass.  40.     1830. 

§  3.  Plaintiff  had  his  store  building  and  merchandise 
therein  insured.  After  insuring  he  sold  the  merchandise 
and  leased  the  building  by  parol,  and,  six  months  after- 
wards, took  them  back  again.  Held^  that  this  was  not  an 
alienation  within  meaning  of  the  condition  providing, 
that  "alienation  by  sale  or  otherwise  should  avoid  the 
policy ;"  and  that  policy  would  re-attach  to  any  goods  be- 
longing to  assured  that  might  be  in  the  store  during  life 
of  the  policy,  not  exceeding  the  amount  insured.  Lane  v. 
Maine  Mut.  Fire  Ins.  Co.  12  Me.  44.     1835. 

§  4.  If  the  assured  sell  the  property  and  part  with 
all  his  interest  therein  before  the  loss  happens,  the  policy 
is  at  an  end,  unless  assigned  to  the  purchaser  with  consent 
of  company,  but  if  he  retains  a  partial  interest  in  the  prop- 
erty, the  policy  will  protect  such  interest,  nothing  therein 


ALIENATIOl^. 


5T 


* 


being  contrary  to  a  change  of  title  or  interest,    -^tna  Ins. 
Co.  V.  Tyler,  16  Wend.  N.  Y.  385.     1836. 

§  5.  A  by-law  of  a  mutual  insurance  company  pro- 
vided, "  When  any  mansion,  house  or  other  building  shall 
be  alienated  by  sale  or  otherwise,  the  policy  shall  there- 
upon be  ipso  facto  void,"  ifec,  but  the  grantee  or  alienee 
might  have  the  same  confirmed  to  him ;  and  another  by- 
law provided,  "  that  where  any  estate  mortgaged  shall  be 
taken  possession  of  by  the  mortgagee  for  breach  of  the 
condition  expressed  in  the  mortgage,  deed,  or  in  any  bond 
of  defeasance,  the  policy  shall  thereupon  be  absolutely 
void,  unless  the  policy  shall  be  transferred  to  the  mort- 
gagee with  the  consent  of  the  president."  The  assured 
executed  a  mortgage  on  the  insured  premises,  after  the 
issuing  of  the  policy.  Held,  that  the  execution  of  such 
mortgage  was  not  an  alienation  within  meaning  of  the 
condition.  Jackson  v.  Massachusetts  Mut.  Fire  Ins.  Co. 
23  Pick.  Mass.  418.     1839. 

§  6.  Plaintiff  insured  a  mill  for  $4,000  with  defend- 
ants. Subsequent  to  the  insurance,  and  before  a  loss,  he 
entered  into  a  contract  with  N.  to  sell  him  the  premises 
for  $16,000,  and  executed  a  deed  to  N.,  whereupon  N.  ex- 
ecuted a  mortgage  back  to  secure  the  payment  of  $11,000, 
and  the  residue  of  the  purchase  money,  $5,000,  was  to  re- 
main open  until  the  close  of  a  controversy  between  one 
White  and  the  plaintiff  in  respect  to  incumbrances  on  the 
property,  and  the  deed  and  mortgage  were  placed  in  the 
hands  of  a  third  party  until  the  controversy  was  settled, 
and  were  in  said  third  party's  hands  at  time  of  fire,  "  the 
incumbrance  matter  "  not  yet  having  been  settled.  Both 
deed  and  mortgage  had  also  been  recorded.  Held,  that 
the  deed  did  not  take  effect  as  an  operative  instrument 
until  the  happening  of  the  contingency  provided  for,  and 
that  the  fact  of  its  having  been  recorded  was  only  prima 
facie  evidence  of  a  delivery,  and  might  consequently  be 
rebutted,  and  that  therefore  these  transactions  did  not 
divest  the  plaintiff*  of  his  insurable  interest  in  the  premises. 
Gilbert  v.  Worth  American  Fire  Ins.  Co.  23  Wend.  N.  Y. 
43.     1840. 


: 


ii' 


58 


ALIENATION. 


.»> 


§  Y.  Plaintiff  insured  house  and  kitchen  for  $2,800, 
and  before  loss  made  a  donation  mter  vivos  of  the  prop- 
erty to  another,  with  no  restriction,  except  that  she 
should  not  alienate  or  dispose  of  the  property  except  by 
last  will  and  testament.  Held,  that  at  time  of  loss  there 
did  not  remain  in  plaintiff  such  an  interest  as  entitled  him 
to  recover.  Macarty  v.  Commercial  Ins.  Co.  17  La.  365. 
1841. 

§  8.  If  insured  part  with  his  interest  in  the  property 
before  a  loss,  the  policy  is  void.  Wilson  v.  Hill,  3  Met. 
Mass.  66.    1841. 

§  9.  Policy  for  "  $3,000  on  household  furniture,  liquors, 
bar-room  fixtures,  and  billiard  tables,  contained  in  a  build- 
ing situate,"  <fec.  provided  "that  the  interest  of  the  as- 
sured in  this  policy  is  not  assignable  unless  by  consent 
manifested  in  writing,  and  in  case  of  any  transfer  or  ter- 
mination of  the  interest  of  the  assured,  either  by  sale  or 
otherwise,  without  such  consent,  this  policy  shall  from 
thenceforth  be  void."  The  assured,  subsequent  to  the  in- 
surance, sold  the  property  to  another,  who  retained  pos- 
session about  six  months,  when  the  assured  again  took 
possession  in  consequence  of  non-payment  by  the  vendee, 
and  was  in  possession  and  owned  the  goods  at  the  time  of 
the  fire.  Seld,  that  the  clause  referred  to  an  absolute 
termination  of  interest,  and  not  to  a  temporary  alienation ; 
that  the  risk  was  only  suspended  whilst  in  possession  of 
vendee,  and  revived  again  upon  her  coming  into  possession ; 
and  that,  having  had  an  interest  at  time  of  insurance,  and 
also  at  time  of  the  loss,  she  might  recover.  Power  v.  Ocean 
Ins.  Co.  19  La.  28.     1841. 

§  10.  An  agreement  by  the  insured  to  convey  the 
premises  insured  at  a  future  day  on  payment  of  the  pur- 
chase money,  is  not  such  an  alienation  as  to  defeat  a  policy, 
where  a  loss  occurs  after  the  agreement  and  before  the 
conveyance,  and  assured  remains  in  possession  of  the  prop- 
erty. Trumbull  v.  Portage  County  Mut.  Ins.  Co.  12  Ohio, 
305.     1843. 

§  11.    Where  two  parties,  owning  property  jointly, 


9  i 


ALIENATION. 


59 


eflfect  an  insurance,  and  before  a  loss  one  sells  to  the 
other,  an  action  cannot  be  maintained  in  their  joint 
names,  they  having  no  joint  interest  at  the  time  of  the 
loss.  Howard  v.  Albany  Ins.  Co.  3  Denio,  N.  Y.  301. 
1846. 

§  12.  Under  clause  requiring  notice  of  alienation  to 
be  given  to  the  company,  and  an  assignment  of  the  policy 
to  be  made  to  the  alienee  within  sixty  days;  Held,  1st, 
that  a  conveyance  to  trustees  for  the  benefit  of  creditors 
was  an  alienation;  2d,  that  the  grantor  was  estopped 
from  alleging  such  conveyance  to  be  fraudulent  and  void ; 
3d,  that  the  assignment  and  notice  must  be  made  and 
given  before  loss,  being  of  no  avail  when  made  and  given 
after  loss,  though  within  the  sixty  days.  Dadmun  Manuf. 
Co.  V.  Worcester  Mut.  Fire  Ins.  Co.  11  Met.  Mass.  429. 
1846. 

§  13.  The  12th  section  of  the  statute  incorporating 
the  Vermont  Mutual  Fire  Insurance  Company  provided 
"  That  when  any  house  or  other  building  shall  be  alienated 
by  sale  or  otherwise,  the  policy  shall  be  void."  The  as- 
sured conveyed  the  premises  to  D.,  and  on  the  same  day 
D.  executed  to  assured  a  deed  of  the  same  premises,  con- 
taining the  condition  that  if  he  paid  to  assured  two  thou- 
sand dollars  in  three  years  from  date,  and  should  allow 
assured  to  hold  the  >  peaceable  possession  until  the  said 
sum  was  fully  paid,  then  the  deed  to  be  void.  Held,  that 
this  was  only  a  conditional  sale,  and  not  such  an  aliena- 
tion, within  the  terms  of  the  statute,  as  would  vitiate  the 
policy.  Tittemore  v.  Vermont  Mut.  Fire  Ins.  Co.  20  Vt. 
646.     1848. 

§  14.  A  mortgage  of  property  insured  is  not  an  aliena- 
tion within  the  meaning  of  the  condition,  "That  if  the 
property  insured  shall  be  alienated  by  sale  or  otherwise, 
the  policy  shall  be  void."  Conover  v.  Mutual  Ins.  Co.  3 
Demo,  N.  Y.  254.  1846.  Affirmed  1  Comst.  N.  Y.  290. 
1848. 

§  15.  Where  policy  provided,  "That  if  the  building 
should  be  alienated  by  sale  or  otherwise,  the  policy  should 


f 


60 


ALIENATION. 


be  void ;"  Held^  that  a  transfer  of  the  property  to  assignee 
by  decree  issued  upon  application  for  bankruptcy,  was  an 
alienation  within  meaning  of  the  condition.  Held  also, 
that  an  alienation  had  occurred,  where  the  assured  had 
given  an  absolute  deed  and  taken  back  an  agreement  for 
reconveyance,  provided  he  should  pay  a  certain  amount 
within  ten  years.  Adams  v.  Rockingham  Mut.  Ins.  Co. 
29  Me.  292.     1849. 

§  16.  "Where  two  partners,  owning  property  jointly, 
effected  an  insurance  in  their  names,  and,  before  a  loss, 
one  partner  conveyed  all  his  interest  to  the  other ;  Held^ 
that  an  action  .could  not  be  maintained  in  their  joint 
names,  although  the  secretary  of  the  company  at  the  time 
of  the  sale  made  the  following  indorsement  on  the  policy, 
to  wit:  "Consented  the  within  policy  remain  good  to 
Nelson  Murdoch,  who  is  the  sole  owner  now  of  the  said 
insured  mill."  Murdock  v.  Chenango  County  Mut.  Ins. 
Co.  2  Comst.  N.  Y.  210.  1849.  (But  see  Manley  v.  Ins. 
Co.  of  N.  Am.  1  Lansing,  20,  31.     1869.) 

§  17.  A.  was  tenant  for  life  of  one-third  of  a  lot,  and 
for  years  of  the  other  two-thirds.  Her  husband  built  a 
house  on  the  ground  and  insured  it  as  his.  They  then 
sold  to  the  reversioner  for  annual  payments,  and  husband 
quitclaimed  and  took  back  a  mortgage,  the  mortgagor 
taking  possession.  Before  any  of  the  payments  became 
due,  the  house  was  burned.  Held^  that  there  had  been 
such  an  alienation  as  to  avoid  the  policy,  under  the  usual 
by-law,  prohibiting  an  alienation  in  whole  or  in  part. 
Abbott  V.  Hampden  Ins.  Co.  30  Me.  414.     1849. 

§  18.    Where  a  policy  provided  that,  "  when  any  prop- 
erty insured  by  this  company  shall  in  any  way  bp  al  <  n 
ated,  the  policy  thereupon  shall  be  void ;    ar  1  W^  re  were 
several  distinct  subjects  of  insurance,  sep  .   valued, 

but  all  in  the  same  policy,  one  of  which  .>:>  afterward 
conveyed.  Held^  that  the  conveyance  onl^  ivoidetl  the 
policy  as  to  the  property  alienated.  Clark  v.  N  w  En- 
gland Mut^  Ins.  Co.  6  Cush.  Mass.  342.     1850. 

§  19.     The  levy  of  an  execution  on  premises  insured, 


ALIENATION. 


61 


will  not  avoid  a  policy,  as  being  an  alienation,  for,  until 
the  expiration  of  the  time  for  redemption,  the  assured  still 
retains  an  interest  in  the  premises.  Clark  v.  New  En- 
gland Mut.  Ins.  Co.  6  Cush.  Mass.  342.     1850. 

§  20.    A  sale  or  mortgage  of  the  property  insured  in 
this  company,  renders  the  policy  void,  ana  loses  the  lien  of  r^ 
the  company  on  the  same.    Indiana  Mut.  Fire  Ins.  Co.  v.  [J 
Coquillard,  2  Carter,  Ind.  645.     1851.     McCulloch  v.  In- 
diana Mut.  Fire  Ins.  Co.  8  Blackf.  Ind.  30.    1846. 

§  21.  Three  partners,  owning  a  flouring  mill  jointly, 
effected  an  insurance  on  the  same,  for  the  sum  of  twenty- 
five  hundred  dollars,  and  assigned  the  policy,  with  the  in- 
surers' consent,  to  a  mortgagee  of  the  mill  insured.  Sub- 
sequently, one  of  the  partners  conveyed  to  the  others  hi? 
interest  in  the  mill  without  the  consent  of  the  company. 
The  policy  provided,  "  That  when  property  insured  shall 
be  alienated  by  sale  or  otherwise,  the  policy  shall  be 
void."  Heldy  Ist,  that  an  action  could  not  be  maintained 
in  the  names  of  the  three  partners  for  their  own  benefit ; 
2d,  but  that  the  conveyance  did  not  affect  the  right  of  the 
assignee,  who  might  recover  in  their  names  the  amount  of 
his  mortgage.  Tillou  v.  Kingston  Mut.  Ins.  Co.  1  Seld. 
N.  Y.  405.     1851.    Reversing  s.  c.  7  Barb.  N.  Y.  570. 

§  22.  The  policy  provided  that,  "  When  any  building 
shall  be  alienated  by  sale  or  otherwise,  the  policy  shall 
thereupon  be  void.  No  mortgaged  estate  shall  be  deemed 
to  be  alienated,  within  the  meaning  of  this  article,  until 
the  mortgage  shall  have  been  foreclosed.  And  any  policy 
payable  to  a  mortgagee  in  case  of  loss,  shall  continue  so 
payable,  notwithstanding  any  alienation  of  the  estate 
made  subsequent  to  such  mortgage ;  provided  such  mort- 
gagee shall  pay  any  and  all  assessments,  for  which  the 
company  would  have  had  a  lien  on  the  estate,  if  no  such 
alienation  had  been  made,  if  the  original  assured  shall  not 
pay  the  same  on  demand."  The  policy  was  issued  to  B. 
on  their  dwelling  house,  "  payable  in  case  of  loss  to  John 
T.  Macomber,  mortgagee,"  in  March,  1844 ;  in  February, 
1844,  the  mortgage  to  Macomber  had  been  executed  by 


62 


ALIENATION. 


B. ;  in  September,  1847,  B.  conveyed  the  entire  interest  in 
the  estate,  subject  to  the  mortgage,  to  Wheeler;  in  No- 
vember, 1846,  Macomber  assigned  his  interest  in  the  policy, 
and  his  mortgage,  to  one  C.  who,  in  September,  1847,  as- 
signed the  same  to  Wheeler ;  Wheeler  then  entered  upon 
the  premises  for  the  purpose  of  foreclosing  the  mortgage, 
and  remained  in  possession  until  the  fire,  which  occurred 
in  March,  1849.    After  the  conveyances  above  mentioned, 
the  company  collected  two  assessments  from  B.    HeM^  Ist, 
that  under  this  policy,  an  alienadon  by  the  a^isured  would 
not  bar  the  right  of  the  mortgagee  or  his  assignee  to  claim 
when  the  loss  should  happen,  and  that  the  assignee  might 
sue  for  his  benefit,  in  the  name  of  the  assignor ;  but  second, 
that  when  Wheeler  legally  acquired  the  entire  equity  of 
redemption,  and  then  took  an  assignment  of  the  mortgage, 
the  two  interests  coalesced,  and  worked  a  merger,  which 
vested  in  him  an  estate  in  fee,  and  efifectually  foreclosed 
the  mortgage,  before  the  loss  by  fire ;  that  such  foreclosure 
was  within  meaning  of  the  condition,  and  assignee  of  mort- 
gagee could  not,  therefore,  recover.    Macomber  v.  Cam- 
bridge Mut  Fire  Ins.  Co.  8  Cush.  Mass.  133.     1851. 

§  23.  Personal  property,  after  beinj  insured  against 
fire  in  two  companies  for  $600,  was  sold  by  the  insured, 
and,  but  one-half  the  purchase  money  being  paid,  and 
judgment  note  being  given  for  balance,  it  was  agreed  be- 
tween the  vendor  and  the  vendee,  that  the  vendor  was  to 
retain  possession  of  the  property  and  policies  of  insurance 
till  he  was  paid  in  full.  The  property  was  destroyed  by 
fire  before  payment  in  fiill,  and  the  claims  against  the  in- 
surance companies  were  attached  by  a  creditor  of  the 
vendor.  Held^  that  sucl^  '^  possession  was  good  as  between 
the  parties  to  the  sale ;  vhat,  in  favor  of  the  creditors  of 
the  vendor,  the  goods  might  be  treated  as  his ;  that,  as 
against  the  insurance  companies,  the  vendor  was  to  be 
considered  as  the  owner  to  the  extent  of  the  unpaid  pur- 
c^iase  money ;  and  that  he  or  his  creditors  might  recover 
that  amount  under  the  policies.  Norcross  v.  Insurance  Co. 
17  Penn.  St.  429.     1851. 

§  24.    Plaintiff  insured  her  mill,  and  afterwards  made 


..  ► 


ALIENATION. 


ea 


a  contract  to  sell,  but  none  oi  the  conditions  of  the  con- 
tract were  performed  at  time  of  fire,  nor  were  ever  performed 
afterwards,  nor  had  any  deed  been  given.  Held,  not  to  be 
an  alienation  of  the  property  insured  within  the  meaning 
of  the  section  in  the  charter  prohibiting  "  an  alienation 
by  sale  or  otherwise."  Masters  v.  Madison  County  Mut. 
Ins.  Co.  11  Barb.  N.  Y.  624.     1851. 

§  25.  Policy,  containing  stipulation  that  any  "  trans- 
fer or  change  of  title  should  avoid  the  policy,"  was  issued 
on  a  hotel,  which  was  mortgaged,  and  policy,  with  consent 
of  the  company,  assigned  to  a  mortgagee  as  collateral  se- 
curity. After  the  insurance  and  before  the  fire,  the  mort- 
gaged premises  were  sold  by  a  master  in  chancery,  under 
a  decree  of  foreclosure,  and  part  of  the  purchase  money 
paid  by  purchaser,  though  no  r'ed  was  executed  at  the 
time  of  sale,  nor  until  after  th^^  fire.  Held,  that  it  was  a 
change  of  title,  within  the  meaning  of  the  condition,  that 
avoided  the  policy,  the  sale  being  valid,  and  deed  after- 
wards given  relating  back  to  the  day  of  sale.  McLaren  v. 
Hartford  Fire  Ins.  Co.  1  Seld.  N.  Y.  151.     1851. 

§  26.  Policy  was  issued  on  mortgaged  property,  to 
mortgagor,  made  payable  in  case  of  loss  to  the  mortgagee. 
Prior  to  the  loss,  the  property,  by  foreclosure  of  the  mort- 
gage, became  vested  in  the  mortgagee.  Held,  that  the  mort- 
gagee was  entitled  to  sue  and  recover  for  the  loss  in  the 
name  of  the  mortgagoi*,  and  the  fact  that  by  the  foreclosure, 
the  mortgagor,  to  whom  the  policy  was  issued,  lost  his 
interest  in  the  property,  did  not  defeat  the  policy.  Bragg 
V.  New  England  Mut.  Fire  Ins.  Co.  5  Fost.  N.  H.  289. 
1852. 

§  27.  An  agreement  to  sell,  but  deed  not  made  or 
purchase  money  paid,  will  not  divest  assured  of  his  inter- 
est, so  as  to  bar  an  action  in  case  of  loss.  Perry  Ins.  Co. 
v.  Stewai-t,  19  Penn.  St.  45.     1852. 

§  28.  Philips  procured  a  policy  of  defendant,  in  name 
of  Daniel  Flint,  and  in  his  application  set  forth  the  title  to 
the  property  in  these  words :  "  The  property  belongs  to 
Daniel  Flint,  of  which  Jacob  Philips  has  a  bond  for  a 


J 


64 


ALIENATION. 


deed."  The  policy  was  then  assigned  to  Philips  in  these 
words:  "I  hereby  assign  and  transfer  the  within  policy  to 
J.  M.  Philips  for  'his  benefit  in  case  of  loss.  Daniel 
Mint."  This  was  assented  to  by  the  president  of  the 
company.  The  company  set  up  in  defense  that,  under 
their  by  law  providing  that  when  property  shall  be  alien- 
ated by  sale  or  otherwise,  the  grantee  might  have  the 
policy  confirmed  to  him  with  the  consent  of  the  directors, 
&c.  the  policy  was  void,  as  the  president's  consent  was  not 
a  compliance  with  such  by-law.  Heldy  that  the  above 
clause  had  application  only  in  cases  of  alienation  of 
insured  property.  And  further  held,  that  although  the 
assent  of  the  directors  was  necessary  under  another  by-law, 
providing  that  "  the  president  and  directors  shall  have  the 
management  and  the  direction  of  all  matters  and  things 
not  otherwise  provided  for  in  these  regulations,"  such  as- 
sent would  be  implied  where  the  president  was  in  the 
habit  of  assenting  to  policies  without  objection  by  the 
directors  or  the  corporation.  It  is  too  late  to  take  such  an 
objection  after  the  assignment  has  remained  for  months 
unquestioned  on  the  records  of  the  company.  Philips  v. 
Merrimack  Mut.  Fire  Ins.  Co.  10  Cush.  Mass.  350.     1852. 

§  29.  "Where  charter  provided  that  "  in  case  of  alien- 
ation by  sale  or  otherwise,  the  policy  should  be  void ;" 
Meld,  that  the  descent  of  title  to  "  heirs"  was  not  an  alien- 
ation within  meaning  of  the  charter.  Burbank  v.  Rock- 
ingham Ins.  Co.  4  Fost.  N.  H.  550.     1852. 

§  30.  Plaintiffs  were  insured  with  defendants  to  the 
amount  of  ^7,500  on  movable  machinery  and  stock  in  a 
cotton  mill.  Whilst  policy  was  in  foi'ce,  and  before  the 
loss,  the  plaintifts  made  a  bill  of  sale  of  a  large  part  of  the 
property  to  one  of  their  creditors,  as  security  for  the 
amount  due  said  creditors,  plaintiffs  remaininaj  m  posses- 
sion as  before.  The  policy  provided  that  "  The  interest 
of  the  assured  in  this  policy  is  not  assignable,  unless  by 
consent  of  this  corporation,  manifested  in  writing,  and  in 
case  of  any  transfer  or  termination  of  the  interest  of  the 
assured  in  this  policy,  either  by  sale  or  otherwise,  without 
such  consent,  tnis  policy  shall  from  hencefoi'th  be  void 


ALZENATIOK 


65 


I 


and  of  no  eflfect."  Held,  Ist,  that  the  clause  was  not  ap- 
plicable to  this  case,  as  nothing  short  of  a  termination  of 
the  interest  of  the  assured  in  this  policy  could  work  a  for- 
feiture, which  termination  had  not  occurred,  as  the  assured 
were  yet  interested  in  the  policy  to  the  extent  of  the  value 
of  the  property  unsold,  and  for  which  amount  they  might 
recover ;  and  2d,  that  the  sale,  being  one  that  would  in 
equity  be  treated  as  a  mortgage,  did  not  change  or  termi 
nate  the  interest  of  the  assured  within  the  meaning  of  the 
condition.  Holbrook  v.  American  Ins.  Co.  1  Curtis  C.  C. 
U.  S.  193.     1852. 

§  31.  Where  policy  upon  goods  of  two  j)artners  pro- 
vided, "  That  any  transfer  or  change  of  title,  in  the  prop- 
erty insured"  should  avoid  the  policy ;  Held,  that  a  disso- 
lution of  partnership  before  a  loss,  and  division  of  the 
goods,  so  that  each  partner  owned  distinct  portions,  though 
not  strictly  a  sale  of  the  goods,  was  yet  a  change  of  title 
within  meaning  of  the  condition.  Dreher  v.  -^tna  Ins. 
Co.  18  Mo.  128.     1853. 

S  32.  Where  two  partners  in  trade  took  an  insurance 
on  their  stock  of  goods,  and,  during  the  continuance  of  the 
policy  and  before  the  loss,  one  of  the  said  partners  sold 
and  assigned  his  interest  in  the  stock  of  goods  to  the  other, 
but  did  not  assign  the  policy,  which  provided,  ^'  that  it 
should  become  void  by  assignment  without  consent  of  the 
underwriters;"  Hel<^,  that  such  transfer  of  the  property 
insured  did  not  avoid  the  policy,  and  remaining  partner 
might  maintain  an  action  at  common  law  in  name  of  the 
lii*m  for  his  own  use  and  benefit,  and  recover  for  the  loss 
of  his  original  interest,  but  not  for  a  loss  to  the  interest  of 
his  cop.>itner,  so  assigned  to  him,  for  that  had  ceased  to  be 
covered  by  the  policy.  Hobbs  v.  Memphis  Ins.  Co,  1 
Sneed,  Tenn.  444.     1853. 

§  33.  Where  A.  effected  an  insurance  on  dwelling 
house  and  afterwards  sold  it  to  B.,  who  at  the  same  time 
re-conveyed  it  to  a  trustee  to  secure  to  A.  the  payment  of 
the  purchase  money ;  Held,  that  A.  retained  an  insurable 
interest,  and,  after  a  loss,  might  recover  to  the  extent  of 
his  actual  loss,  not  to  exceed  the  sura  insui'ed.  (Does  not 
appear  from  decision  that  there  were  any  prohibitions  in 

5 


66 


ALIENATION. 


V 


policy  against  sale,  transfer,  or  change  of  title,  or  aliena- 
tion.) Morrison  v.  Tennessee  M.  &  F.  Ins.  Co.  18  Mo.  262. 
1853. 

§  34.  When  underwriting  for  a  firm,  the  insurers  are 
presumed  to  know,  and  be  satisfied  with,  each  and  every 
one  of  its  members.  They  are  also  presumed  to  know, 
that  on  the  death  of  either  of  two  partners,  the  survivor, 
for  all  purposes,  becomes  the  sole  legal,  and,  on  a  favor- 
able state  of  the  account,  the  sole  equitable  owner  of  the 
partnership  assets.  They  know  too  that  on  a  voluntary 
dissolution  of  the  firm,  if  one  partner  has  drawn  out  more 
than  his  share,  the  other  will  thereby  have  been  made  the 
sole  owner  of  the  assets  remaining.  They  therefore  agree, 
in  effect,  that  a  transfer  of  interest  from  one  partner  to  the 
other,  is  within  the  original  understanding,  and  that  it 
shall  form  no  objection,  in  case  of  loss,  to  the  right  of  re- 
covery. It  is  an  assent  necessarily  implied  fi'om  the  nature 
of  the  contract,  and  given  in  advance ;  and  therefore  re- 
quiring no  subsequent  notice.  Wilson  v.  Genesee  Mut. . 
Ins.  Co.  16  Barb.  N.  Y.  511.     1853. 

§  35.  Where  the  assured  assigned  his  policy  to  the 
mortgagee  of  the  premises  insured,  as  collateral  security, 
with  the  consent  of  the  insurer,  and  mortgagee  also  signed 
the  preurium  note  of  original  assured,  and  afterwards 
mortgagor,  or  original  insured,  sold  a  portion  of  the  prem- 
ises absolutely,  and  at  the  same  time  took  back  a  lease 
for  five  years  at  a  nominal  rent  and  under  agreement  to 
keep  and  leave  the  premises  in  good  repair;  Jleldy  tha'; 
under  the  condition  of  the  charter,  prohibiting  any  "  alien- 
ation of  the  property  insured,  by  sale  or  otherwise,"  &c. 
the  policy  was  void  as  to  the  mortgagor's  interest,  but  that 
recoveiy  might  be  had  to  the  amount  due  on  the  mortgage 
to  mortgagee.  Boynton  v.  Clinton  &  Essex  Mut.  Ins.  Co. 
16  Barb.  N.  Y.  254.     1853. 

§  36.  Where  goods  had  been  levied  on  by  the  sheriff, 
who  did  not  remove  them  from  assured's  store,  but  pro- 
ceeded to  sell  the  same  at  auction,  and  a  part  of  them  had 
been  sold,  and  the  sale  was  yet  going  on  at  the  time  of 
the  fire ;  Held,  that  it  was  not  an  alienation  that  avoided 
the  policy.    Rice  v.  Tower,  1  Gray,  Mass.  426.    1864. 


. 


ALIENATION. 


67 


r 


§  37.  "Where  assured  executed  a  mortgage  on  the 
stock  of  goods  insured,  after  effecting  insurance,  but  re- 
mained in  possession  until  the  time  of  the  fire ;  Held^  not 
such  an  alienation  as  vacated  the  policy.  Rice  v.  Tower, 
1  Gray,  Mass.  426.     1854. 

§  38.  A  parol  contract  for  the  sale  of  personal  prop- 
erty does  not  avoid  the  policy  under  prohibition  against 
change  of  title,  when  the  money  has  not  been  paid  or  the 
goods  delivered,  but  still  remain  in  possession  of  assured 
at  time  of  fire,  ^tna  Ins.  Co.  v.  Jackson,  16  B.  Monroe, 
Ky.  242.     1855. 

§  39.  A  mortgage  of  the  property  insured  is  not  an 
"  alienation "  within  the  meaning  of  a  clause  prohibiting 
any  alienation  by  sale  or  otherwise.  Rollins  v.  Columbian 
Fire  Ins.  Co.  5  Fost.  N.  H.  200.  1853.  Pollard  v.  Somer- 
set  Mut.  Fire  Ins.  Co.  42  Me.  221.     1856. 

§  40.  "Where  policy  had  been  assigned  with  the  con- 
sent of  the  company  to  a  tliird  party  as  collateral  security, 
and  the  assignee  had  no  claim  against  the  property  by 
deed  or  mortgage,  and  original  assured  afterwards  con- 
veyed the  property  to  another  party ;  Held^  that  such  con- 
veyance avoided  the  policy,  under  clause  of  alienation,  in 
hands  of  assignee,  as  well  as  of  assignor,  and  that  an  at- 
tachment by  assignee  against  original  insured,*  did  not 
give  him  a  right  of  recovery  under  the  assigned  policy  on 
his  interest  by  attachment,  nor  by  the  original  interest, 
though  the  conveyance  of  the  property  was  fraudulent  as 
between  the  original  insured  and  the  grantee.  Brinsley 
V.  City  Fire  Ins.  Co.  26  Conn.  165.     1857. 

§  41.  B.  took  a  policy,  dated  June  11,  1853,  upon 
"  his  interest,  being  one-half  of  a  wooden  steam  saw-mill," 
and  indorsed  thereon  the  following:  "June  12th,  1853. 
In  case  of  loss,  pay  the  within  to  Josiah  Q.  Loring,  Esq., 
to  secure  his  mortgage."  This  indorsement  was  regularly 
assented  to  by  the  company.  B.  afterward  conveyed  to 
H.  all  his  interest  in  the  saw-mill.  The  policy  contained 
the  following  conditions :  "  If  the  property  insured  shall 
be  sold  or  conveyed,  in  whole  or  in  part,  the  risk  shall 
cease,  and  the  policy  shall  become  void;"  but  "the  policy 


68 


ALIENATION. 


may  con  tin  ue  for  the  benefit  of  such  purchaser,  if  this 
company  give  their  assent  thereto,  to  be  evidenced  by  a 
certificate  of  the  fact,  or  by  indorsement  on  the  policy." 
An  action  was  brought  on  the  policy  by  Loring.  Held^ 
that  the  policy  was  not  assigned  to  L.  and  did  not  become 
an  insurance  on  his  interest  as  mortgagee,  but  he  had  a 
mere  written  order  to  pay  him  such  sum  as  should  become 
payable  to  B.  thereon;  and  that  the  alienation  to  H. 
avoided  the  policy. 

It  further  appeared  that  B.  took  another  policy  in 
same  company,  dated  June  18,  1853,  on  "his  interest, 
bein^  three-tenths,"  in  said  saw-mill,  and  assigned  the  same 
to  H.  reciting  in  the  assignment  that  he  had  "  sold  the 
within  named  property  to"  him;  and  to  this  assign- 
ment the  company  gave  its  written  consent.  Held^  that 
this  was  only  notice  to  the  company  of  the  conveyance  to 
H.  of  the  three-tenths  interest  described,  and  did  not  affect 
the  policy  of  June  11th. 

ileld  further,  that  the  assent  of  the  company  to  the 
conveyance  to  H.  of  the  property  described  in  the  policy 
of  June  11th,  could  not  be  shown  by  parol;  but  that  the 
evidence  of  such  assent  must  be  in  writing.  Loring  v. 
Manufacturers'  Ins.  Co.  8  Gray,  Mass.  28.    1857. 

§  42.  Policy  on  stock  of  goods,  which,  after  effecting 
insurance,  were  sold  on  execution  and  bought  in  by  the 
plaintiff,  who  had  the  policy  assigned  to  himself,  with  the 
consent  of  the  company,  but  without  specially  disclosing 
the  nature  of  his  interest  in  the  insured  property ;  Held^ 
1st,  that  the  sale  of  the  goods  did  not  avoid,  but  only 
suspended,  the  policy,  which  was  still  a  valid  and  subsist- 
ing contract  in  the  hands  of  the  original  assured,  and 
would  re-attach  to  the  same  kind  of  goods  afterwards  pur- 
chased, and  put  in  the  same  place,  and  was  also,  therefore, 
valid  in  hands  of  one  to  whom  policy  had  been  assigned, 
with  the  consent  of  the  company ;  and  2d,  that  application 
to  an  insurer  for  his  consent  to  the  assignment  of  a  policy, 
was  notice  that  the  applicant  had  acquired,  or  was  about 
to  acquire,  some  interest  in  the  subject  of  insurance,  since, 
without  such  interest,  an  assignment  would  be  valueless 
to  him.  Hooper  v.  Hudson  Kiver  Ins.  Co.  15  Barb.  N.  Y. 
413.    1853.    Affirmed  17  N.  Y.  424.    1858. 


K 


ALIENATION. 


69 


§  43.  Where  policy  provided  that  "  the  insurance  by 
this  policy  shall  cease  from  the  time  the  property  hereby 
insured  shall  be  levied  on  or  taken  into  possession  or  cus- 
tody under  an  execution  or  other  proceeding  at  law  or  in 
equity ;"  Held^  that  the  clause  referred  to  executions  sub- 
sequent to  the  taking  out  of  the  policy,  and  the  fact  that 
the  property  was  under  execution  at  time  of  the  insurance, 
and  continued  so  until  the  time  of  the  fire,  did  not  affect 
the  right  of  the  holder  of  the  policy.  Kex  v.  Insurance 
Co.  2  Philadelphia,  Pa.  357.     1858. 

§  44.  Policy  was  issued  to  a  partnership,  and  after- 
wards one  of  the  partners  sold  his  interest  in  the  property 
insured  to  the  other.  The  act  of  incorporation  and  by- 
laws declared  that  when  property  insured  was  alienated 
by  "sale  or  otherwise,"  the  policy  should  become  void, 
and  this  was  expressly  made  a  condition  of  the  policy. 
Held^  that  the  said  sale  was  within  the  prohibition  against 
alienation.  Finley  v.  Lycoming  Mut.  Ins.  Co.  30  Penn. 
St.  311.     1858. 

§  45.  The  assignment  of  a  part  of  a  mortgage  debt, 
prior  to  the  insurance,  to  a  third  person,  for  whom  no 
claim  is  made  under  the  policy,  does  not  affect  the  right 
of  the  mortgagee  to  recover  for  the  remainder.  Rex.  v. 
Insurance  Co.  2  Philadelphia,  Pa.  357.    1858. 

§  46.  The  policy  provided  that  "  in  case  of  any  sale, 
transfer  or  change  of  title  in  the  property  insured  by  this 
company,  such  insurance  shall  be  void."  In  order,  to  pre- 
vent attachment  of  the  goods  insured  by  her  creditors, 
the  assured  represented  that  she  had  sold  the  goods  to  one 
C.  who  was  also  a  creditor.  There  was  no  bill  of  sale  of 
the  property  given,  but  a  mere  agreement  between  assured 
and  C.  that  if  any  of  her  creditors  came,  she  was  to  tell 
them  that  the  goods  belonged  to  C.  Held^  that  this  was 
not  an  alienation  that  avoided  the  policy ;  that  to  consti- 
tute a  breach  of  the  condition,  there  must  have  been  an 
actual  sale  or  transfer  of  the  property,  valid  as  between 
the  parties.  Orrell  v.  Hampden  Fire  Ins.  Co.  13  Gray, 
Mass.  431.     1859. 

§  47.    Where  by-law  provided  that  "  When  any  prop- 


70 


ALIENATION. 


erty  insured  in  the  company  shall  in  any  way  be  alien- 
ated, the  policy  thereupon  shall  be  void,"  and  another 
by-law,  that  "when  the  title  of  any  property  insured 
shall  be  changed  by  sale,  mortgage,  or  otherwise,  the 
policy  shall  thereupon  be  void ;"  a  mortgage  made  on  the 
insured  premises  after  eflfecting  the  insurance,  does  not 
avoid  the  policy.  A  mortgage  and  foreclosure  are  both 
necessary  to  make  it  a  change  of  title  within  the  meaning 
of  the  condition.  Sheperd  v.  Union  Mutual  Fire  Ins.  Co. 
38  N.  H.  232.     1859. 

§  48.  Where  one  of  three  partners,  who  had  effected 
insurance,  afterwards  and  before  a  loss,  sells  his  interest 
to  the  other  two,  without  notice  to,  or  consent  of  the  in- 
surers, the  entire  policy  is  void  by  reason  of  the  condition 
that  "  in  case  of  any  transfer  or  change  of  title  in  the  prop- 
erty insured  by  this  company,  or  of  any  undivided  interest 
therein,  such  insurance  shall  be  void  and  cease."  And 
an  action  cannot  be  maintained  in  the  name  of  the  three 

Eartners,  when  the  declaration  shows  that  one  partner 
as  no  interest.    Dix  v.  Mercantile  Ins.  Co.  22  111.  272. 
1859. 

§  49.  An  insurance  policy  was  issued  under  seal  to  J. 
McGowan  &  Sons,  for  one  year,  with  a  covenant,  that  it 
should  continue  so  long  as  the  assured  or  their  assigns 
should  pay  the  premium,  and  the  company  should  accept 
and  receive  the  same  from  them.  The  firm  was  composed 
of  John  McGowan  and  his  two  sons  at  time  policy  was 
issued,  and  the  father  retired  from  the  firm  during  the 
year,  and  after  making  the  insurance,  and  the  business 
was  continued  by  the  two  sons  under  the  same  title, 
"  J.  McGowan  &  Sons."  The  day  preceding  the  expira- 
tion of  the  policy  the  premium  for  the  second  year  was 
paid,  and  a  renewal  receipt  indorsed  upon  the  policy, 
stating  that  the  company  had  received  the  premium  from 
J.  McGowan  &  Sons  under  policy  No.  12,704,  "which  is 
hereby  continued  in  force  for  another  year."  The  com- 
pany had  no  knowledge  of  the  change  of  the  firm,  and 
during  the  second  year  a  loss  occurred.  In  an  action  by 
the  plaintiffs  (the  two  sons) ;  Held,  1st,  that  the  renewal 
receipt  was  not  a  parol  and  new  contract  with  other 


ALIENATION. 


n 


parties  on  which  action  of  assumpsit  might  be  brought, 
but  was  simply  an  extension  for  another  year  of  the 
original  sealed  contract,  and  the  plaintiffs  not  being  the 
covenantees  nor  their  assignees,  could  not  maintain  an 
action  of  covenant  upon  the  policy;  2d,  but,  whether 
specially  or  parol,  no  action  could  be  maintained  on  the 
contract,  except  by  the  parties  insured ;  it  was  a  joint  con- 
tract, and  whatever  sum  could  be  recovered,  would  be  in 
solidOf  and  no  one  of  the  parties  insured  could  sue  alone 
for  his  proportion.  Baltimore  Fire  Ins.  Co.  v.  McGowan, 
16  Md.  47.     1859. 

§  50.  Policy  provided  that  "  Whenever  any  member 
of  this  company,  who  has  an  insurance  on  goods  or  other 
personal  property  only,  shall  bona  fide  alienate  or  sell  out 
said  goods  or  other  personal  property,  he  may  have  the 
same  privilege  of  surrendering  or  assigning  his  policy,  and 
in  the  same  form  and  manner  as  is  provided  for  in  the 
12th  section  of  the  act  of  incorporation,  in  case  of  the 
alienation  or  sale  of  the  building."  The  section  thus  re- 
ferred to  provided,  "That  when  any  building  shall  be 
alienated,  the  policy  shall  thereupon  be  void  and  sur- 
rendered to  the  directors  to  be  canceled,"  &c.  The  ma- 
chinery of  a  woolen  mill  was  insured  under  this  policy  for 
$5,000,  and  subsequent  to  such  insurance  a  mortgage  for 
$10,000  was  executed  on  said  machinery,  in  connection 
with  other  property,  which  mortgage  was  afterwards  fore- 
closed, and  the  property  sold  by  a  master  in  chancery,  in 
pursuance  of  a  decree,  and  the  proceeds  of  such  sale,  by 
order  of  the  court,  applied  to  the  satisfaction  pro  tanto,  of 
such  decree.  The  property  was  then  destroyed  by  fire. 
Held,  that  assured  could  not  recover  for  the  loss,  although 
subsequently  to  such  loss,  and  before  the  commencement 
of  the  action  on  the  policy,  the  sale  was,  by  consent  of  all 
parties  thereto,  set  aside  by  order  of  the  court  under 
whose  decree  the  sale  was  made.  Mount  Vernon  Manuf. 
Co.  V.  Summit  County  Mut.  Fire  Ins.  Co.  10  Ohio  St.  347. 
1859. 

§  51.  The  policy  provided  that  "The  interest  of  the 
insured  in  this  j)olicy  is  not  assignable,  unless  by  consent 
of  this  corporation  manifested  in  writing ;  and  in  case  of 


r2 


ALIENATION 


any  transfer  or  tennination  of  the  interest  of  the  insured, 
either  by  sale  or  otherwise,  without  such  consent,  this  policy 
shall  from  thenceforth  be  void  and  of  no  effect."    The  policy 
was  several  times  renewed,  and  previous  to  its  last  renewal 
in  1856,  the  assured  gave  a  bond  for  a  deed  to  the  premises 
to  one  S.,  in  consideration  of  $5,500,  of  which  part  was 
paid  in  cash,  and  two  notes  of  $1,500  each,  due  in 
twelve  and  twenty-four  months,  ^ven  for  the  balance. 
By  the  terms  of  the  bond,  the  premises  were  to  be  kept  in- 
sured by  the  plaintiff,  for  the  benefit  of  S.  who  was  to  pay 
the  premiums  thereon.     S.  took  and  kept  possession  of 
the  premises,  and  before  the  fire  paid  the  first  note  of 
$1,500 — and  subsequent  to  the  fire,  and  the  commence- 
ment of  this  action,  paid  the  other  note  of  $1,500,  and 
thereupon  received  a  warranty  deed  of  the  insured  prem- 
ises.   *rhe  company  had  no  notice  of  this  sale  and  change 
of  possession  until  after  the  fire.    The  policy  was  for 
$2,000.     Held,   1st,  that  the  executory  contract,  above 
stated,  was  not  a  violation  of  the  provision  in  the  policy ; 
that  such  clause  referred  to  the  property  insured,  and  that 
as  the  plaintiff  was  interested,  at  time  of  the  fire,  to  the 
extent  of  the  unpaid  purchase  money,  he  had  not  parted 
vdth  all  interest,  and  might  recover  to  the  extent  of  $1,500, 
the  amount  then  due,  and  no  more ;  2d,  that  the  insurers 
would  not  have  been  entitled  to  be  subrogated  to  the 
rights  of  the  plaintiff,  even  if  they  had  paid  the  $1,500, 
upon  the  commencement  of  the  suit;  3a,  that  the  pay- 
ment of  the  balance  due,  since  the  commencement  of  the 
suit,  made  no  difference,  as  coupled  with  the  agreement  in 
the  contract,  to  keep  the  premises  insured  for  the  benefit 
of  S.  and  the  payment  of  the  premium  thereon  by  the  lat- 
ter, it  was  perfectly  equitable,  that,  as  between  the  plaintiff 
and  S.  the  insurance  money  should  go  to  the  latter — and 
that  the  plaintiff  having  a  clear  right  of  action  at  the  com- 
mencement of  the  suit,  the  court  would  not  act  upon  proof 
of  such  payment,  not  brought  before  it  by  the  pleadings, 
to  defeat  a  just  demand  against  the  company.    Shotwell 
V.  Jefferson  Ins.  Co.  5  Bosw.  N.  Y.  247.    1859. 

§  52.  The  policy  was  made  subject  to  by-laws,  one  of 
which  provided  that  "  when  any  property  insured  by  this 
company  shall  be  taken  possession  oi  by  a  mortgagee,  or 


«^ 


I 


I 


.  i 


ALIENATION. 


73 


I 


I 


in  any  way  be  alienated,  the  policy  shall  be  void."  The 
judge  of  insolvency,  by  a  deed  of  assignment  in  the  usual 
form,  assigned  all  the  property  of  insui'ed,  upon  his  volun- 
tary application,  to  assignees.  Held,,  that  this  was  an 
alienation  within  the  meaning  of  said  by-law,  and  that 
the  policy  was  void ;  and  further  held,  that  this  conclu- 
sion was  not  affected  by  the  fact  that  a  part  of  the  sum 
insured  was  made  payable  in  case  of  loss  to  a  third  party. 
Young  V.  Eagle  Fire  Ins.  Co.  14  Gray,  Mass.  150.     1859. 

§  53.  In  a  policy  obtained  by  A.  upon  his  storehouse, 
and  upon  his  stock  of  goods  therein,  each  for  a  certain 
sum,  there  was  a  condition  that  "  in  case  of  any  transfer, 
partial  transfer,  or  change  of  title  in  the  property  insured, 
such  insurance  shall  be  void  and  of  no  eft'ect,"  <fec.  A. 
afterwards  sold  a  part  of  his  stock,  without  notice  to  and 
without  the  consent  of  the  company,  and  leased  the  lower 
story  of  his  store  to  the  purchasers,  occupying  himself  the 
second  story  and  the  cellar  with  the  balance  of  his  stock, 
which  at  the  time  of  the  fire  exceeded  in  value  the  insurance 
obtained  on  his  goods.  Held,  that  he  had  not  forfeited 
his  right  to  indemnity  by  failing  to  give  notice  of  the  par- 
tial sale,  but  was  entitled  to  recover  the  amount  of  his 
insurance,  it  being  upon  merchandise  which  was  to  be  used 
for  traffic,  and  not  as  property  to  be  kept  unchanged. 
West  Branch  Ins.  Co.  v.  Helfenstein,  40  renn.  St.  289. 
1861. 

§  54.  A  condition  that,  in  case  of  a  transfer  or  change 
of  title  in  the  property  insured,  the  policy  shall  become 
void,  is  not  violated  by  a  lease  of  the  property,  which  only 
changes  the  possession.  West  Branch  Ins.  Co.  v.  Helfen- 
stein, 40  Penn.  St.  289.     1861. 

§  55.  The  policy  provided  that  the  policy  should  cease 
at  and  from  the  time  that  the  property  thereby  insured 
should  "  be  levied  on,  or  taken  into  possession  or  custody 
under  any  proceeding  in  law  or  equity."  Held,  that  the 
fact  of  the  sheriff's  going  to  the  property  and  giving  notice 
of  a  levy  to  the  owner  of  goods,  though  good  and  effectual 
as  between  the  debtor  and  creditor,  was  not  a  violation  of 
the  above  provision  of  the  policy,  so  long  as  the  sheriff  did 
not  take  actual  possession,  or  leave  a  watchman  in  charge 


n 


ALIENATION. 


of  the  premises.  The  phrases  "levied  on,"  and  "taken 
into  possession  or  custody,"  reasonably  construed,  as  it  may 
be  supposed  was  intended  by  the  contracting  parties,  have 
the  same  meaning.  Commonwealth  Ins.  Co.  v.  Berger, 
42  Pa.  St.  285.     1862. 

§  56.  Although  a  policy  of  insurance  contains  a  clause 
prohibiting  "any  transfer  of  the  interest  of  the  insured,  by 
sale  or  otherwise,"  without  the  consent  of  the  insurer,  yet 
a  deed  made  by  the  insured,  conveying  the  goods  to  as- 
signees in  trust,  to  pay  creditors,  will  not  render  the  policy 
void,  the  insured  retaining  the  actual  possession  of  the 
goods.  Phoenix  Ins.  Co.  v.  Lawrence,  4  Mete.  Ky.  9. 
1862. 

§  57.  The  constructive  possession  of  a  sheriff,  by  vir- 
tue of  the  levy  of  an  execution  upon  goods  which  have 
been  insured,  where  the  insured  retains  the  actual  posses- 
sion, will  not  vitiate  the  policy,  although  a  conveyance 
which  terminated  the  interest  of  the  insured  in  the  goods 
would  have  that  effect.  Phoenix  Ins.  Co.  v.  Lawrence,  4 
Mete.  Ky.  9.     1862. 

§  58.  A  policy  of  insurance  containing  a  condition 
that,  "  in  case  of  any  sale,  transfer  or  change  of  title  in  the 
property  insured,  such  insurance  shall  be  void  and  cease," 
is  avoided  by  a  conveyance  which  is  absolute  in  form, 
though  given  as  a  security  for  a  debt  merely ;  and  this, 
though  only  an  undivided  interest  in  the  property  insured 
is  conveyed.  Western  Massachusetts  Ins.  Co.  v.  Riker, 
10  Mich.  279.     1862. 

§  59.  A  policy  of  insurance  in  favor  of  a  firm,  contain- 
ing a  clause  declarmg  it  to  be  void  in  case  of  "  a  sale  of 
the  property  insured,  without  the  consent  of  the  insurers," 
is  not  annulled  by  a  release  by  one  partner  of  all  his  in- 
terest to  the  other.  Hoffman  v.  ^tna  Fire  Ins.  Co.  1 
Robert,  N.  Y.  501 ;  s.  c.  19  Abb.  Pr.  235.     1863. 

This  case  was  affirmed  on  appeal,  in  1865.  See  32  N. 
Y.  405. 

§  60.  A  fire  policy  taken  out  from  a  mutual  company 
by  a  mortgagor  of  a  house,  upon  his  interest  in  it,  though 
assigned  with  the  assent  of  the  company  to  the  mortgagee, 


-A 


ALIENATION. 


76 


^ 


T 


is  avoided  by  a  quit-claim  deed  by  the  mortgagor  of  all 
his  interest  in  the  land  to  the  mortgagee,  executed  after 
the  assignment  and  before  the  loss,  the  policy  never  hav- 
ing been  ratified  and  confirmed  by  the  company,  and  the 
charter  providing  that,  upon  the  alienation  of  a  house  in- 
sured, "by  sale  or  otherwise,"  the  policy  shall  be  ipso  facto 
void,  unless  ratified  and  confinned  to  the  alienee.  Hoxsie 
V.  Providence  Mut.  Fire  Ins.  Co.  6  R  1.  517.    1860. 

§  61.  Where  a  policy  of  insurance  is  issued  to  A.  <fe  B. 
as  partners,  on  property  owned  by  them,  containing  a  pro- 
vision that  if  the  property  be  "  sold  or  conveyed  without 
the  consent  of  the  insurance  company  obtained  in  writing 
on  the  policy,  it  shall  be  void ; "  a  sale  and  conveyance  of 
A.'s  interest  in  the  property  to  his  partner  B.,  without  such 
consent,  avoids  the  policy ;  but  the  forfeiture  of  the  policy 
occasioned  thereby  may  be  waived  by  the  insurance  com- 
pany, and  the  policy  continued  in  force.  Keeler  v.  Niag- 
ara Fire  Ins.  Co.  16  Wis.  523.     1863. 

§  62.  A  mortgage  is  not  such  an  alienation  of  prop- 
erty as  will  defeat  a  policy  of  insurance  which  provides 
that  if  the  projjerty  insured  is  alienated,  the  policy  shall 
be  void.  Smith  v.  Monmouth  Mut.  Fire  Ins.  Co.  50  Me.  96. 
1863. 

§  63.  A  chattel  mortgage  given  upon  goods  covered 
by  a  policy  of  insurance  upon  a  stock  of  merchandise,  in- 
cluding goods  sold  but  not  delivered,  without  parting  with 
their  possession  or  the  right  of  possession  thereto,  will  not 
avoid  such  policy,  although  one  of  its  printed  conditions 
provides  that  "  in  case  of  any  transfer  or  termination  of 
the  interest  of  the  insured  in  the  property,  by  sale  or  other- 
wise— the  policy  shall  be  void;"  and  "that  in  case  of 
any  sale,  alienation,  or  transfer,  or  change  of  title  in  the 
property  insured,  or  of  any  individual  interest  therein,  such 
insurance  shall  be  void ;  and  the  entry  of  a  foreclosure  of 
a  mortgage,  or  the  levy  of  an  execution,  or  an  assignment 
for  the  benefit  of  creditors,  shall  be  deemed  an  alienation 
of  the  property."  The  meaning  of  the  words  "  sale,  alien- 
ation or  transfer,"  in  such  condition  is  to  be  confined  to 
acts  which  absolutely  divest  the  title  of  the  insured.    Van 


76 


ALIENATION. 


J 


r 


Deusen  v.  Charter  Oak  Fire  &  Marine  Ins.  Co.  1  Robert. 
N.  Y.  55.     1863.    Same  Case,  1  Abb.  Pr.  N.  S.  349. 

§  64.  Where  a  policy  of  insurance  upon  the  interest 
of  a  mortgagor  was  to  be  void  if  the  estate  should  be 
alienated  or  incumbered  by  sale,  assignment,  or  otherwise, 
and  his  right  to  redet  Ji  the  property  was  seized  and  sold 
on  a  writ  of  execution ;  Jfeldy  that  the  sheriff's  sale  to  a 
third  person  of  the  right  of  redemj.tion  was  an  incum- 
brance upon  the  property ;  and  if  the  title  thus  acquired 
should  be  perfected  by  lapse  of  time,  it  would  constitute 
an  alienation  of  it.  Oampbell  v.  Hamilton  Mut.  Ins  Co. 
Ins.  Co.  51  Me.  69.     1863. 

§  65.  When  a  policy  of  insurance  was  to  be  void  if 
there  should  be  any  alienation  or  change  in  the  title,  any 
material  change,  though  not  by  alienation,  will  have  that 
effect. 

Thus,  where  the  plaintiff  obtained  insurance  on  an  un- 
divided half  of  a  dwelling  house,  and  afterwards,  on  the 
petition  of  his  co-tenant,  partition  was  made  on  judgment 
rendered  therefor,  it  was  held  to  be  equivalent  to  an  alien- 
ation and  a  purchase.  Bai*nes  v.  Union  Mut.  Fire  Ins.  Co. 
51  Me.  110.     1863. 

§  66.  A  fire  policy  taken  out  from  a  mutual  company 
by  a  mortgagor  of  a  house  upon  his  interest  in  it,  though 
assigned  with  the  assent  of  the  company  to  the  mortgagee, 
is  avoided  by  the  assignment  of  the  mortgagor  of  all  his 
interest  in  it  for  the  benefit  of  his  creditors,  though  made 
without  the  assent  or  knowledge  of  the  moi'tgagee — the 
charter  providing  that "  if  the  said  property-  (insured)  shall 
be  sold  or  conveyed  in  whole  or  any  part,  then  this  insur- 
ance shall  be  void  and  of  no  effect."  Nor  will  the  fact 
that  assessments  have  been  made  and  collected  upon  the 
piemium  note  of  the  insured  after  the  alienation  of  the 
premises  insured,  but  in  ignorance  of  such  alienation,  ope- 
rate as  a  waiver  of  the  forfeiture  of  the  policy  under  the 
above  condition.  Hazard  v,  Fianklin  Mut.  Fire  Ins.  Co. 
7  R.  I.  429.     1863. 

§  67.     Where  by  one  of  the  conditions  of  a  policy  of 
insurance,  it. was  provided  ''  that,  in  case  of  any  sale,  trans- 


1 


I 


ALIENATION. 


77 


4 


fer  or  change  of  title  of  any  property  insured  by  this  com- 
pany, or  of  any  undivided  interest  therein,  such  insurance 
shall  be  void  and  cease ;  Held^  that  a  sale  and  transfer  by 
one  partner  to  one  of  his  co-partners,  of  his  interest  in  the 
partnership  property,  without  the  consent  of  the  company, 
and  before  the  loss  occurred,  avoided  the  policy,  and  that 
it  was  not  material  that  such  sale  and  transfer  was  made 
without  the  assent  of  another  partner.  Hartford  Fire  Ins. 
Co.  V.  Ross,  23  Ind.  179.     1864. 

§  68.  Where  an  assured,  having  an  insurable  interest 
at  the  time  the  policy  is  issued,  aliens  the  property  and  re- 
tains no  interest  therein,  the  policy,  as  to  him,  is  at  an  end ; 
but  if  an  interest  is  still  retained,  the  policy  in  the  ab- 
sence of  special  stipulations  to  the  contrary  will  cover  and 
protect  that  interest.  Ay  res  v.  Hartford  Fire'  Ins.  Co.  17 
Iowa,  176.     1864. 

§  69.  Where  a  policy  which  by  its  terms  wa«  to  be- 
come void  upon  an  alien  ^tion  of  the  property  insured  not 
assented  to  by  the  company,  was  to  continue  so  long  as 
the  yearly  payments  stipulated  therein,  were  made,  and 
one  of  the  partners  of  the  firm  insured  sold  and  trans- 
ferred his  interest  in  the  property  insured  to  his  co-partner, 
who  continued  for  several  years  thereafter  to  make  the 
yearly  payments  required  by  the  policy  to  the  treasurer, 
the  authorized  agent  to  receive  them,  but  no  notice  of 
the  sal  of  the  partnership  interest  was  regularly  given, 
nor  an}  transfer  of  the  policy  executed  to  the  ^purchaser ; 
Held,  that  the  policy  did  not  necessarily  become  void ;  but 
that  the  facts  were  evidence,  to  be  submitted  to  the  jury 
upon  the  question  w^^ether  the  state  of  the  policy  was 
known  to  the  compaiy;  and,  if  so,  their  receipt  for  the 
annual  premiums  for  tour  yeais  after  the  assignment,  tend- 
ed to  show  an  acquiescence  in  the  alienation,  a  waiver  of 
the  forfeiture,  and  consequently  an  estoppel.  Buckley  v. 
Garrett,  47  Penii.  St.  204.     18C4. 

§  70.  A  provision  in  a  ;'ulicy  of  insurance  that  it 
should  become  void  upon  a  ^ale  or  transfer  of  property  in- 
sured, unless  the  policy  was  also  transferred  to  the  pur- 
chaser, and  the  transfer  accepted  by  the  president  or 
secretary  of  tlie  company  within  twenty  days  after  the 


78 


ALIENATION. 


sale  or  transfer,  or  before  a  fire,  does  not  apply  to  a  case 
where  the  assured  has  parted  with  his  interest  in  the 
policy  by  an  assignment  approved  by  the  company.  Buck- 
ley V.  Garrett,  47  Penn.  St.  204.     1864. 

§  71.  A  transfer  by  one  tenant  in  common  to  his  co* 
tenant,  or  from  one  partner  to  another,  will  avoid  a  policy 
which  provides  that  alienation  by  sale  or  otherwise  shall 
forfeit  the  policy.  Buckley  v.  Garrett,  47  Penn.  St.  204. 
1864. 

§  72.  WTiere  a  policy  provides  that  upon  any  sale,^ 
transfer  or  change  of  title  in  the  property,  the  insurance 
shall  cease ;  a  merely  nominal  transfer,  as  collateral  secuii^^y 
for  debts  which  are  subsisting  liens  upon  the  ]"op.  ay, 
will  not  avoid  the  policy ;  but  a  transfer  which  lessens 
the  interest  of  the  assured  in  preventing  a  destruction  of 
the  property  will  avoid  it.  Ayres  v,  Hai*tford  Fire  Ins. 
Co.  17  Iowa,  176.     1864. 

§  73.  The  effect  of  the  usual  proviso  against  sales  in 
policies  of  insurance  is  not  to  interdict  sales  of  the  owne^a 
as  between  themselves,  but  only  sales  of  proprietary  ni- 
terests  by  the  parties  insured,  to  third  persons.  Hoffman 
V.  ^tna  Fire  Ins.  Co.  32  N.  Y.  405.     1865. 

§  74.  Where  a  policy  of  insurance  on  chattels  con- 
tains a  clause  that  "  in  case  of  any  sale,  transfer,  or  change 
of  title  in  the  property  insured  such  insurance  shall  be 
void  and  cease."  The  execution  of  a  chattel  mortgage  on 
the  property  by  the  insured  to  a  third  person,  without 
notice  to  the  insurance  company,  or  their  assent  obtained, 
will  avoid  the  policy.  Tallman  v.  Atlantic  Fire  and 
Marine  Ins.  Co.  29  How.  N.  Y.  71.     1865. 

§  75.  Where  a  policy  provided  that  "  in  case  of  any 
sale,  transfer  or  change  of  title  in  property  insured,  or  of 
any  undivided  interest  therein,  the  insurance  thereon 
should  be  void  and  cease ;"  Held^  that  an  assignment  as 
collateral  security  was  not  a  "  sale,  transfer  or  change  of 
title,"  within  the  meaning  of  the  policy.  Ayres  v.  Hart- 
ford Ins.  Co.  21  Iowa,  198.     1866. 

§  76.    A  policy  of  insurance  stipulated  that  the  policy 


.. 


\ 


ALIENATIOIf. 


r^ 


* 


should  be  made  void  if  the  property  should  be  sold  or  con- 
veyed, or  the  interest  of  the  parties  therein  changed.  Held, 
that  a  merely  nominal  conveyance,  without  an  actual  change 
of  interest,  would  not  avoid  the  policy ;  that  an  assign- 
ment of  a  title-bond  held  by  the  insured  to  a  lien-holder 
to  secure  him  for  advancing  the  purchase  money  stipulated 
to  be  paid  to  the  obligor  in  the  bond  by  the  assured,  and 
also  to  secure  the  payment  of  a  judgment  which  was  a 
lien  upon  the  property  older  than  the  policy  of  insurance, 
if  it  did  not  increase  the  interest  of  such  assignee  and  lien- 
holder  and  decrease  the  interest  of  the  party  insuring,  did 
not  change  the  interest  of  such  assured  so  as  to  defeat  the 
policy.     Ayres  v.  Home  Ins.  Co.  21  Iowa,  185.     1866. 

§  77.  A  sale  on  foreclosure  of  a  mortgage  of  the  in- 
sured premises  by  a  master  commissioner,  before  confir- 
mation of  the  report,  does  not  destroy  the  assured's  in- 
terest, nor  work  such  change  of  title  as  the  policy  pro- 
hibits; since  until  such  confirmation  the  bidder  is  not 
considered  a  purchaser,  nor  compellable  to  complete  his 
purchase.  McLaren  v.  Hartford  Fire  Ins.  Co.  1  Edmond's 
Sel.  Cas.  210.     1846. 

§  78.  Although  several  conveyances  of  the  property 
have  taken  place  without  consent  of  the  company,  which 
by  the  conditions  of  the  policy  renders  it  void,  yet  a  con- 
sent having  been  given  to  the  last  conveyance  and  to  an 
assignment  of  the  policy  to  the  vendee,  it  is  a  subsisting 
insuran'^e;  and  the  prior  forfeitures  for  want  of  notice  are 
waived.  Gilliat  v.  Pawtucket  Mut.  Fire  Ins.  Co.  8  R  I. 
282.     1866. 


8  79. 


u 


§  <v.  A  condition,  that  the  policy  shall  cease  "in 
case  of  any  chaise  of  title  in  the  property,"  is  not  broken 
by  a  sale  and  taking  back  a  mortgage  for  the  purchase 
money.  This  is  not  a  chwoje  of  title  within  the  condition. 
Kitts  V.  Massasoit  Ins.  Co.  56  Barb.  177.     1867. 

§  80.  The  policy  was  to  be  void  "  if  t'le  property  shall 
be  sold."  The  policy  was  assigned  with  the  comi)any's  con- 
sent to  a  mortgagee,  whose  mortgage  was  in  existence  at 
the  date  of  the  policy ;  under  these  circumstances  a  de- 
livery of  the  possession  and  control  of  the  property  to  the 


so 


ALIENATION. 


mortgagee  is  not  such  a  future  alienation  as  to  avoid  the 
the  policy.  Washington  Ins.  Co.  v.  Hayes,  17  Oh.  St.  432. 
1867. 

§  81.  Policy  to  be  void  if  the  property  should  be 
"  alienated  by  sale  or  otherwise,"  or  if  the  property  or  any 
part  of  it  should  "  be  transferred  by  any  contract  or  any 
change  of  partnership  or  ownership  without  written  con- 
sent." Held,  a  contract  of  sale,  by  which  no  deed  is  to  be 
made  until  all  the  price  is  paid,  is  no  breach  of  the  con- 
dition— which  is  aimed  at  insurance  without  interest,  i.  e., 
where  there  is  a  temptation  to  omit  the  necessary  good 
faith — as  it  gives  neither  title  nor  ownership,  but  only  an 
interest  which  may  not  ripen  into  a  title ;  and  how  the 
equity  may  result  in  a  matter  only  between  the  parties 
thereto,  and  though  the  purchaser  becomes  in  equity/  the 
owner,  he  is  so  only  to  the  vendor,  and  his  title  cannot  be 
set  up  by  a  stranger  against  the  vendor's  rights.  Hill  v. 
Cumberland  Valley  Mut.  Protection  Co.  59  Pa.  St.  474. 
1868. 

§  82.  The  condition  of  avoidance  in  case  of  sale  does 
not  apply  to  a  stock  of  goods  kept  for  sale,  which  may  be 
sold  and  replaced,  the  policy  protecting  the  stock  on  hand, 
and  being  suspended  on  its  separation  from  the  original 
goods.  Therefore,  the  stock  being  sold  to  one  who  im- 
mediately resold  to  the  assured's  wife,  and  the  company 
having  consented  to  an  assignment  of  the  policy  by  the 
assured  to  his  wife,  it  again  becomes  effectual  by  the  union 
of  ownership  of  the  goods  and  of  the  policy.  The  com- 
pany is  estopped  to  deny  the  validity  of  the  husband's 
assignment  directly  to  the  wife. 

An  application  for  consent  to  an  assignment  of  the 
policy  is  suflScient  notice  that  the  applicant  would  acquire 
an  interest  in  the  insured  goods.  Wolfe  v.  Security  Fh'e 
Ins.  Co.  39  N.  Y.  40.     1868. 

§  83.  A  policy  becomes  void,  in  case  of  sale  of  the 
insured  projierty,  for  want  of  insurable  interest,  although 
without  any  condition  to  that  effect  in  it,  but  a  transfer 
of  part  of  assured's  interest  does  not  avoid  it  as  to  his 
remaining  interest.  Mauley  v.  Ins.  Co.  of  North  America, 
1  Lansing,  20.     1869. 


f  * 


ALIENATION. 


81 


§  84.  A  sale  by  a  husband  of  his  wife's  house,  she  not 
having  a^Hhorized  the  sale,  and  it  appearing  to  be  intend- 
ed only  as  security,  cannot  defeat  insurance  issued  to  her. 
Commercial  Ins.  Co.  v.  Spankneble,  52  111.  53.     1869. 

§  85.  A  policy,  to  be  void  "  if  said  property  shall  be 
sold  or  conveyed,  or  the  interest  of  the  parties  therein 
changed,"  was  issued  to  Z.,  who  had  bought  out  his  part- 
ner's interest*  and  got  the  insurance  to  secure  his  partner's 
lien  for  the  purchase  money.  The  partner  afterwards 
bought  in  the  property,  in  proceedings  enforcing  his  lien, 
but  the  sale  was  not  confirmed  until  after  the  fire,  nor 
was  the  occupancy  surrendered  or  changed.  Held^  the 
condition  was  not  broken.  Manhattan  Ins.  Co.  v.  Stein  & 
Zang,  5  Bush.  652.     1869. 

§  86.  A  policy  on  chattels  was  to  be  void  *'  if  the 
title  is  transferred  or  changed,"  and  providing  that  "the 
entry  of  a  foreclosure  of  a  mortgage  shall  be  deemed  an 
alienation."  Held.,  by  "  entry  of  a  foreclosur® "  is  not 
meant  the  consummated  performance  only,  the  mere  trans- 
fer, but  the  change  of  title ;  and  the  policy  is  avoided  by 
any  act  of  the  mortgagee  which  will  of  itself,  without 
further  process  by  him,  deprive  the  assured  of  all  right  in 
the  chattels  unless  he  pay  the  debt,  such  as  the  recording, 
under  the  statute,  of  notice  of  an  intention  to  foreclose. 
Mclntyre  v.  Norwich  Fire  Ins.  Co.  102  Mass.  230.     1869. 

§  87.  Policy  to"  be  void  in  case  of  sale  of  the  prop- 
erty, but  the  policy  might  be  continued  to  the  purchaser, 
if  the  company  indorsed  its  consent.  Held.,  an  indorse- 
ment of  "Payable  in  case  of  loss"  to  the  plaintitf,  to 
which  the  company's  consent  was  added,  does  not  imply 
on  the  part  of  the  company  either  knowledge  of  or  con- 
sent to  a  sale  of  the  goods,  lieing  entirely  consistent  with 
a  mere  transfer  of  the  right  to  receive  })ayment  in  case  of 
loss ;  and  a  sale  having  been  made,  the  policy  is  voitU 
Bates  V.  Equitable  Ins.  Co.  10  Wall.  33.     1869. 

§  88.  Qucpre. — As  to  breach  of  a  condition  against 
alienating,  in  a  mutual  policy,  whether  it  avoids  the 
policy  after  the  company's  first  lien  on  the  premises  tor 
the  premium  is  established.  Russ  v.  Mut.  Fire  Ins.  Co. 
of  Clinton,  29  U.  C,  Q.  B.  73.     1869. 


^iH 


82 


ALIENATION. 


f'/ 


§  89.  The  insurance  to  cease  in  case  of  any  sale, 
transfer,  or  change  of  title,  without  the  company's  consent. 
The  assured  died  intestate,  and  between  three  and  four 
months  afterwards  a  loss  occurred.  Held^  the  vesting  of 
title  in  the  heirs-at-law  on  assured's  death  was  a  change 
of  title,  within  the  express  terms  of  the  policy,  by  which  it 
became  void,  and  the  change  of  possession  without  consent 
of  the  company  jDroduced  the  same  result.  Lappiu  v. 
Charter  Oak  F.  <fe  M.  Ins.  Co.  58  Barb.  325.    1870. 

§  90.  A  policy  "  not  assignable  without  consent "  is 
issued  to  two  partners,  one  of  whom  afterwards  sold  his 
joint  interest  to  the  other.  Held^  not  such  an  alienation 
as  would  avoid  the  policy,  even  had  there  been  a  clause 
forbidding  alienation  of  the  property,  which  the  above 
does  not  do.  Pierce  v.  Nashua  Fire  Ins.  Co.  50  N.  H.  297. 
1870. 

§  91.  Policy  to  to  be  void  "  if  the  property  shall  be 
sold  or  conveyed."  A  contract  of  sale,  without  delivery 
of  possession  or  of  title,  and  with  only  a  part  of  the  price 
paid,  is  not  a  sale  within  the  meaning  of  the  policy.  Ihere 
must  be  a  passage  of  a  right  to  the  property  and  to  the 
possession.  Reynolds  v.  Mut.  Fire  Ins.  Co.  of  Cecil  Co. 
54  Md.  280.     1870. 

§  92.  Policy  to  be  void  "  if  the  title  of  the  property 
is  transferred  or  changed."  A  mortgage  was  already  on 
the  premises,  to  take  up  which,  the  assured  conveyed  the 
premises  to  another,  taking  back  a  defeasance.  Held^  this 
last  only  constituted  a  mortgage ;  the  equity  of  redemp- 
tion was  no  more  heavily  Ijurdened  than  before — there 
being  only  a  substituting  of  one  mortgage  for  another — 
and  a  mortgage  is,  by  Commercial  In«.  Co,  v.  Spankneble, 
52  111.  53,  not  a  sale,  alienation,  transfer  or  change  of  title, 
within  the  meaning  of  the  condition,  which  is  to  be  con- 
strued stricti  juris.  Aurora  Fire  Ins.  Co.  v.  Eddy,  55  111. 
213.     1870. 

§  93.  A  mortgage  is  not  a  In-eacli  of  the  clause  of 
forfeiture  for  change  of  title  or  possession  "  whether  by 
sale,  legal  process,  judicial  decree,  voluntary  transfer  or 
■conveyance,    none  of  which  terms  embrace  a  mortgage. 


I 


ALIENATION. 


83 


Constructions  producing  forfeiture  must  not  be  searched 
for.     Hartford  Fire  Ins.  Co.  v.  Walsh,  54  111.  164.     1870. 

§  94.  A  policy  for  the  benefit  of  an  "  estate  "  contained 
a  clause  of  forfeiture  for  assignment  of  the  property.  The 
widow,  being  also  administratrix  and  guardian,  made  a 
contract  to  sell,  as  soon  as  she  could  obtain  the  requisite 
authority  from  the  court,  the  vendee  meantime  entering 
as  tenant  paying  rent.  A  loss  occurred  while  he  was  ten« 
ant.  Held,  as  the  contract  was  not  obligatory  on  the 
infant  heirs,  and  therefore  did  not  become  binding  on 
the  vendee  until  approved  by  court,  the  latter  acquired 
no  title. 

After  the  fire  a  new  contract  was  made,  the  vendee 
purchasing  the  real  estate  and  the  claims  for  insurance, 
and  taking  a  deed.  Held  further,  the  fire  fixed  the  liabil- 
ity of  the  insurers,  at  the  same  time  discharging  the  ven- 
dee of  his  contract  of  purchase :  the  new  contract  is  not  an 
election  to  fulfil  the  old  one,  nor  can  the  insurers  be  sub- 
rogated to  claim  the  purchase  money  to  th?  extent  of  their 
liability  (affirming  s.  c.  51  Barb.  647).  Clinton  v.  Hope 
Ins.  Co.  6  Hand.  454.     1871. 

§  95.  An  agreement  to  sell  tl  e  insured  goods,  not  in 
writing — within  the  statute  of  frauds ;  no  delivery  being 
made  as  yet;  the  price  not  to  be  paid  until  they  are 
weighed,  and  the  price  to  be  applied  on  a  prior  indebted- 
ness, is  not  a  parting  of  the  assured's  interest  by  sale,  nor 
does  a  part  delivery  after  the  fire  affect  the  title  of  the 
part  already  lost.  Pitney  v.  Glens  Falls  Ins.  Co.  61  Barb. 
335.     1871. 

§  96.  Insurance  to  a  partnership  is  not  affected  by  a 
transfer  of  liis  interest  by  one  partner  to  the  others,  not- 
withstanding a  clause  that  "  if  the  property  should  be 
sold  or  conveyed,  or  the  interest  of  the  parties  changed," 
the  contract  shall  be  void.  Burnett  &  Martin  v.  Eufaula 
Home  Ins.  Co.  46  Ala.  11.     1871. 

§  97.  A  condition  that  the  policy  should  be  void  if 
the  property  were  "  sold  or  transferred,  or  any  change 
take  place  in  title  or  possession,  whether  l3y  legal  process, 
or  judicial  decree,  or  voluntary  transfer  or  conveyance,"  is 


84 


ALTERATION. 


broken  by  an  assignment  of  the  assured  in  bankruptcy. 
Perry  v.  Lorillard  Fire  Ins.  Co.  6  Lansing,  201.      1871. 

§  98.  A  policy  provided  that  it  should  be  void  "  if 
the  property  be  sold  or  transferred,  or  any  change  takes 
place  in  title  or  possession,  whether  by  legal  process,  or 
judicial  decree,  or  voluntary  transfer  or  conveyance." 
Held^  a  sale  by  the  assured  to  one  in  possession  as  lessee, 
with  mortgage  back  for  deferred  payments,  did  not  deprive 
assured  of  an  insurable  interest,  and  therefore  did  not  de- 
feat the  policy.  Savage  v.  Long  Island  Ins.  Co.  43  How. 
Pr.  462.     1872. 


See  Agent,  §  90.  Assignment,  1,  5,  6,  7,  9.  19,  26,  44,  45,  46.  Burden  of 
Proof,  6.  Certificate,  9.  Encumbrance,  28.  Insurance  Interest,  11,  58.  In- 
terest in  Policy,  17.  Lien,  5,  6.  Other  Insurance,  54.  Parol  Contract,  4,  7. 
Parol  Evidence,  11.  Responsibility  of  Assignee  for  Acts  of  Assignor,  3,  9. 
Title,  55.    Use  and  Occupation,  20.    Wlio  may  sue,  4,  37. 


w 


ALTERATION. 

§  1.  An  alteration  or  enlargement  of  a  building  will 
not  avoid  the  policy,  unless  the  risk  be  thereby  increased ; 
which  must  be  determined  by  the  jury.  CuiTy  v.  Com- 
monwealth Ins.  Co.  10  Pick.  Mass.  535.  1830.  Stetson 
V.  Massachusetts  Mutual  Ins.  Co.  4  Mass.  330.     1808. 

§  2.  Where  there  had  been  an  alteration  of  the  "  stove 
and  smoke  pipe,"  the  judge  instructed  the  jury,  that,  if  the 
alteration  increased  the  risk,  the  policy  would  be  voiti. 
Held^  that  this  instruction  was  correct.  Jones  Manufac- 
turing Co.  V.  Manufacturers'  Mut.  Ins.  Co.  8  Cush.  Mass. 
82.     1851. 

§  3.  A  by-law  of  a  company,  providing  that,  "  in  case 
of  any  alteration,  application  may  be  made,  to  have  the 
premises  examined  m  order  to  be  ascertained  and  certified 
whether  the  risk  be  thereby  increased  or  not,"  need  not 
be  complied  with  by  assured  before  a  suit  for  a  loss ;  he 
may  take  the  risk  of  that  question  before  a  jury.  Periy 
County  Ins.  Co.  v.  Stewart,  19  Penn.  St.  45.     1852. 


\ 


ALTERATION. 


85 


§  4.  Where  a  by-law  required  notice  within  a  specified 
time,  of  any  alterations  tending  to  increase  the  risk,  and 
alte^tions  were  made,  but  no  notice  thereof  was  given  to 
the  company ;  Held^  that  the  question,  whether  certain  al- 
terations and  additions  made  to  the  insured  property  in- 
creased the  risk,  was  for  the  juiy  to  determine.  Schenck 
V.  Mercer  County  Mut.  Ins.  Co.  4  Zabr.  N.  J.  447.     1854. 

§  5.  Under  a  provision  in  the  charter  against  "  altera- 
tions by  the  act  of  the  proprietor,  without  additional 
premium,"  «fec. ;  Held^  that  an  alteration  made  by  a  tenant, 
without  the  consent  or  authority  of  the  proprietor,  would 
not  avoid  the  policy ;  and  it  was  a  question  for  the  jury 
to  determine,  how  far  the  proprietor  had  authorized  the 
alterations  made  by  the  tenant.  PadlefordV.  Providence 
Mut.  Ins.  Co.  3  R.  I.  102.     1855. 

§  6.  The  owner  of  hotel  and  two  barns  effected  an  in- 
surance thereon  ;  afterwards  he  mortgaged  them  to  plaint- 
iff, to  whom  defendant  ratified  the  policy.  The  mort- 
gagor's tenant,  without  plaintiff's  knowledge  made  an 
addition  which  had  the  effect  of  bringing  the  buildings 
closer  together,  and  carried  on  a  store  in  part  of  the  hotel ; 
a  "change  in  the  occupancy"  was  forbidden  by  the 
conditions,  also,  alteration  of  the  premises.  Held^  the 
policy  was  void  for  the  change  of  occupancy.  It  was 
also  void  as  to  the  whole  policy,  though  otherwise  divis- 
ible, for  the  alteration,  thouirh  unknown  to  the  plaintiff*. 
Kuntz  V.  Niag.  Dist.  Fire^'Ins.  Co.  16  U.  C,  C.  P.  573. 
1866. 

§  7.  A  clause  of  avoidance  if  a  "  building  should  be 
altered,  enlarged,  or  appropriated  to  other  purposes,"  "  or 
the  risk  otherwise  increased  with  the  assured's  knowl- 
edge," does  not  mean  ainf  alteration  though  not  increas- 
ing the  risk;  nor  on  the  other  hand  does  it  mean  no 
alteration  not  permanently  increasing  the  risk ;  but  there 
must  be  an  increase  of  risk,  and  it  need  not  be  perma- 
nent. A  deliberate,  considerable  alteration,  not  incidental 
to  the  ordinary  use  of  the  property,  prolonged  for  three 
weeks,  increasing  the  risk  at  the  time  of  the  fire,  although 
not  permanently,  nor  causing  the  fire,  avoids  the  policy. 
Lyman  v.  State  Mut.  Ins.  Co.  14  Allen,  329.     1867. 


86 


APPLICATION. 


I  i 


§  8.  When  the  by-laws,  to  which  the  policy  is  made 
subject,  provide  that  upon  alteration  of  the  premises  ap- 
plication may  be  made  to  an  oflScer,  who  shall  examine 
them  and  increase  the  premium  if  the  risk  is  increased, 
but  if  not  shall  certify,  "  altered  but  not  endangered ;" 
evidence  that  the  alteration  did  not  increase  the  risk 
cannot  be  given,  nor  is  such  by-law  satisfied  by  the  officer 
going  down,  without  being  applied  to,  to  examine  the 
increase  of  hazard,  but  never  taking  further  action ;  nor 
by  the  knowledge  of  two  managers  of  such  alteration 
without  objecting.  Diehl  v.  Adams  Co.  Mut.  Ins.  Co.  58 
Pa.  St.  443.     1868. 

§  9.  A  policy  was  to  be  avoided  by  any  additions  to 
the  building  insured  without  consent  of  the  directors  in- 
dorsed thereon.  Defendant  pleaded  an  addition  without 
consent  increasing  the  risk.  Held,  the  latter  averment  of 
increase  of  risk  need  not  be  proved,  being  surplusage,  and 
such  breach  was  a  good  defence,  though  the  risk  was  not 
increased.  Lindsay  v.  Niagara  Distr.  Mut.  Fire  Ins.  Co. 
28  Up.  Can.  Q.  B.  326.     1869. 

See  Increase  of  Risk.    Warranty  and  Representation,  §  39.    What  prop- 
erty is  covered  by  the  Policy,  25. 


APPLICATION. 

§  1.  Application  of  the  assured  consisted  of  a  letter 
and  "  diagram  of  the  situation  of  the  buildings  surround- 
ing the  one  to  be  insured,"  and  was  referred  to  in  the 
policy,  but  not  in  express  terms  made  a  part  of  the  con- 
tract. Held,  that  such  general  reference  did  not  make  the 
application  a  part  of  the  policy,  so  as  to  amount  to  a  war- 
ranty of  the  representations  therein  contained.  Stebbins 
V.  Globe  Ins.  Co.  2  Hall,  N.  Y.  632.     1829. 

§  2.  A  survey  of  buildings,  occupied  and  used  as  a 
china  factory,  was  filed  in  the  office  of  the  Eagle  Insurance 
Company,  and  described  a  certain  room  in  the  premises 
as  a  "storeroom  for  painted  ware,"  <fec.    Defendants  is- 


^ 


APPLICATION. 


ST 


sued  a  policy  on  same  property,  and  referred  to  said  sur- 
vey in  Eagle  office  in  general  terms  "  as  described  in  re- 
port No.  5306,  filed  in  the  office  of  the  Eagle  Company." 
A  loss  afterwards  occurred,  and  it  was  in  proof  that  the 
room  referred  to  in  the  survey  as  a  "  store  room  for  paint- 
ed ware,"  was  not  then,  nor  ever  had  been  used  as  such^ 
*but  was  occupied  by  the  carpenter  of  the  establishment, 
who  had  his  bench  and  tools  there,  made  mouldings, 
shelves,  racks,  &c.  for  the  factory.  Jleld,  that  the  mere 
reference  to  the  survey  was  not  to  be  considered  as  incor- 
porating it  in  the  policy,  or  making  it  equivalent  to  a  war- 
ranty, but,  at  most,  a  representation  which,  if  material  and 
falsified,  would  vitiate  the  policy ;  but  its  materiality  was 
a  matter  of  defence,  and,  not  having  been  proven  by  de- 
fendants to  be  material,  assured  might  recover.  Delon- 
guemare  v.  Tradesmen's  Ins.  Co.  2  Hall,  N.  Y.  589.     1829. 

§  3.  To  make  an  application,  the  conditions,  or  any 
other  document,  a  part  of  the  contract,  there  must  be  an 
express  stipulation  that  the  policy  was  made  and  accepted 
in  reference  to  such  other  document  or  paper.  An  appli- 
cation describing  a  building  is  not  a  warranty,  unless  thus 
referred  to  in  the  policy.  Jefferson  Ins.  Co.  v.  Cotheal,  7 
Wend.  N.  Y.  72.    1831. 

§  4.  The  description  in  the  application,  when  it  is 
only  referred  to,  but  not  expressly  made  a  part  of  the 
contract,  may  vary  considerably  from  the  actual  state  of 
the  property  at  time  of  the  loss ;  but  if  not  fraudulently 
intended,  risk  was  not  increased,  or  rate  not  changed  by 
it,  the  policy  would  not  be  avoided.  Jeflerson  Ins.  Co.  v. 
Cotheal,  7  Wend.  N.  Y.  72.     1831. 

§  5,  In  a  policy  on  merchandise  in  a  building  occupied 
by  the  applicant  and  others,  the  building  was  referred  to 
as  "more  particularly  described  in  the  application  and 
survey  furnished  by  assured,  filed  No.  928,  in  the  office  of 
the  Insurance  Company."  IleM,  that  the  survey,  notwith- 
standing the  reference  to  it  in  the  policy  (not  having  been 
expressly  made  part  of  the  policy),  was  a  representation 
merely,  and  not  a  warranty,  and  that  the  plaintiff  was  en- 
titled to  recover,  although  there  was  a  vai  "y  between 
the  survey,  in  saying  that  a  stone  partition  ^an  through 


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APPLICATION. 


the  building,  and  extended  up  to  roof  of  same,  and  proof 
on  the  trial,  that  said  partition  only  extended  up  to  the 
first  floci*,  and  side  walls  of  the  building  rose  five  feet  higher. 
Snyder  v.  Farmers'  Ins.  &  Loan  Co.  13  Wend.  N.  Y.  92. 
1834.    Affirmed,  16  Wend.  N.  Y.  481.    1836. 

§  6.  The  various  answers  contained  in  an  application, 
and  referred  to  in  the  policy  as  "representations,"  are 
rather  to  be  regarded  as  having  the  legal  effect  of  repre- 
sentations, than  of  warranties,  as  understood  in  the  law  of 
marine  insurance,  though  partaking  of  the  character  of 
both ;  and  it  is  sufficient,  if  they  are  made  in  good  faith 
and  ar^.  substantially  correct,  as  to  existing  circumstances, 
and  substantially  complied  with,  so  far  as  they  are  execu- 
tory, p  \i  regard  the  future.  Houghton  v.  Manufacturers* 
Mut.  i  .'i-^  ^113.  Co.  8  Met.  Mass.  114.     1844. 

§  7.  'i  here  was  this  proviso  in  the  policy :  "  If  the 
represents  ior  .I  made  "  (in  the  application)  "  do  not  con- 
tain a  jut*t;  full,  and  true  exposition  of  all  the  facts  and 
circumstances  in  regard  to  the  condition,  situation,  value 
and  risk  of  the  property  insured,  so  far  as  the  same  arc 
known  to  the  applicants,  and  are  material  to  the  risk,  this 
policy  shall  be  void."  Heldf  1st,  that  the  policy,  by  the 
manr>er  in  which  it  refers,  in  terms,  to  the  application  and 
representations,  does  legally  adopt  and  embody  them  as 
part  of  the  contract;  to  the  same  effect  as  if  they  were  re- 
cited and  set  forth  at  large. in  the  policy.  2d,  that  the 
application  and  answers,  being  termed  "  representations," 
in  the  policy,  are  to  be  regarded  as  having  the  legal  effect 
of  representations  rather  than  warranties ;  and  the  fact 
stated  must  be  substantially  true  and  correct,  and,  so  far 
as  executory,  must  be  substantially  complied  with,  and  to 
this  extent  are  conditions  precedent;  but  an  exact  and 
literal  compliance  is  not  required  as  in  the  case  of  warran- 
ties. Houghton  V.  Manufacturers'  Mut.  Fire  Ins.  Co.  8 
Met.  Mass.  114.     1844. 

§  8.  Under  a  condition  in  the  policy,  that  it  shall  be 
void  if  the  application  does  not  contain  a  just,  true,  and 
full  exposition  of  all  the  facts,  "  so  far  as  known  to  the 
applicant,"  it  is  not  true,  as  an  inference  of  law,  that  the 
applicant  is  presumed  to  know  all  the  facts,  because  he  is 


1 


'} 


i 


•   APPLICATIOiN. 


89 


owner  of  the  estate.  This  ouesiiou  of  knowledge  is  one  of 
fact,  to  be  left  to  the  jury  u':>on  the  evidence.  Houghton 
V.  Manufacturers'  Mut.  Fire  Ins.  Co.  8  Met.  Mass.  114. 
1844. 

§  9.  "Where  two  sets  of  representations  are  made  to 
the  agent  of  the  insurance  company  by  the  insured,  and 
the  policy  was  granted  on  one  set,  the  other  was  held  to 
be  inadmissible  to  affect  the  insured,  he  being  only  bound 
by  the  set  given  for  the  policy  issued.  Nicol  v.  Ameri- 
can Ins.  Co.  3  Wood.  &  Min.  C.  C.  U.  S.  529.     1847. 

§  10.  The  'statements  of  the  application  and  survey 
not  deemed  warranties,  although  expressly  referred  to  in 
the  policy  as  forming  part  thereof.  Kentucky  &  Louis- 
ville Mut.  Ins.  Co.  V.  Southard,  8  B.  Monroe,  Ky.  634. 

1848. 

§  11.  Where  the  conditions  annexed  to  a  policy,  but 
not  in  express  terms  referred  to,  provided  that  "in  all 
cases  the  insured  will  be  bound  by  the  application,  for  the 
purpose  of  taking  which  the  surveyor  will  be  deemed  the 
agent  of  the  applicant  as  well  as  of  the  company ; "  ffeldf 
that  the  surveyor  taking  the  application  was  the  agent  of 
both  parties,  but  as  the  application  was  the  act  of  the 
plaintiffs,  they  were  affected  by  any  omission  of  the  sur- 
veyor. Sexton  V.  Montgomery  County  Mut.  Ins.  Co.  9 
Barb.  N.  Y.  191.    |848. 

§  12.  A  policy  of  insurance  contained  the  following 
clause,  immediately  after  a  brief  description  of  the  prop- 
erty insured :  "  Reference  being  had  to  the  application  of 
the  said  K.  for  a  more  particular  description  and  forcing 
a  part  of  this  policy."  Defence  was,  that  because  the 
word  "  and  "  was  used  instead  of  the  word  "  as,"  the  ap- 
plication was  not  part  of  the  contract.  Held,  that  the  ap- 
plication was  part  of  the  contract,  and  the  reference  suffi- 
cient to  make  it  such.  Egan  v.  Mutual  Ins.  Co.  of  Albany, 
5  Denio,  N.  Y.  326.     1848. 

§  13.  A  mere  reference  to  the  application  does  not 
make  it  a  part  of  the  contract,  unless  expressly  stated. 
Wall  V.  Howard  Ins.  Co.  14  Barb.  N.  Y.  383.     1852. 

§  14.     Held,  that  a  reference  to  survey  was,  in  effect. 


90 


aAlication., 


incorporating  it  entire  in  the  contract,  though  not  in  ex- 
press terms  made  part  of  the  contract ;  and  that  all  the 
answers,  applicable  to  the  subject  matter  insured,  were 
obligatory  on  the  insured.  Sheldon  v.  Hartford  Fire  Ins. 
Co.  22  Conn.  235.     1.853. 

§  15.  The  application  is  to  be  taken  as  part  of  the 
contract  of  insurance,  in  the  same  manner  it  would  be  if 
incorporated  in  the  policy  itself.  Philbrook  v.  New  En- 
gland Mut.  Fire  Ins.  Co.  37  Me.  137.     1853. 

« 

§  16.  The  policy  declared  th^ t  it  was  "made  and  ac- 
cepted in  reference  to  the  terms  id  conditions  hereto  an- 
nexed, which  are  to  be  used  and  resorted  to,  in  order  to 
explain  the  rights  and  obligations  of  the  parties  hereto,  in 
all  cases  not  otherwise  specially  provided  for."  One  con- 
dition provided,  that  "  if  any  person  insuring  any  building 
or  goods  in  this  office  shall  make  any  misrepresentation  or 
concealment,  &c.,  such  insurance  shall  be  void,  and  of  no 
effect."  Jleldy  that  the  statements,  of  the  application  were 
to  be  treated  as  representations,  and  not  warranties.  The 
leaning  of  courts  is,  to  hold  stipulations  to  be  representa- 
tions rather  than  warranties,  in  all  cases  where  there  is 
room  for  construction.  Daniels  v.  Hudson  River  Fire  Ins. 
Co.  12  Cush.  Mass.  416.     1853. 

§  17.  The  agent  of  the  company  made  the  survey,  and 
put  in  the  value  of  the  building,  as  given  by  the  appli- 
cant, who  signed  the  ap[)lication,  and  judge  in  lower  court 
instructed  the  jury  that  they  might  find  that  the  defend- 
ants made  a  survey  of  the  premises,  and  that,  therefore, 
they  were  responsible  for  its  correctness  as  to  value,  <fec. 
Ifekl^  that  such  instruction  was  erroneous.  Protection 
Ins.  Co.  v.  Hall,  15  B.  Monroe,  Ky.  41 1.     1854. 

§  18.  Although  i\  policy  provided  that  the  "condi- 
tions were  to  be  resorted  to,  to  explain  the  rights  and  ob- 
ligations of  the  parlies,"  «fec.,  yet  in  an  action  by  the 
assured  on  such  policy  on  woolen  factory ;  Meld,  that  the 
assured  might  show  the  knowledge  of  the  agent  of  the  in- 
surance company  of  the  character  of  the  property ;  that 
the  description  was  prepared  b v  such  agent ;  and  that  the 
omissions,  in  the  policy,  complained  of  by  the  company. 


i 


APPLICATION. 


91 


were  made  by  the  agent,  because  he  considered  them  im- 
material :  and  ther  ;iore  the  validity  of  the  policy  did  not 
depend  upon  the  rompleteness  of  the  written  description, 
as  another  clause  in  the  policy  provided  that  the  "  Com* 
pany  would  be  liable  for  the  correctness  of  surveys  and 
valuations  made  by  its  agent."  Howard  Ins.  Co.  v.  Bru- 
ner,  23  Penn.  St.  50.     1854. 

§  19.  Where  an  agent  of  the  company,  as  well  ac- 
quainted with  the  premises  as  the  assured  himself,  filled 
up  an  application  and  had  the  assured  sign  it ;  Held,  that 
the  assured  was  not  responsible  for  any  misrepresentations 
in  such  survey.  Roth  v.  City  Ins.  Co.  6  McLean,  C.  C.  U. 
S.  324.     1855. 

§  20.  A  policy  of  insurance  upon  a  stock  of  store 
gooas,  provided  "  That  a  false  description  by  the  assured 
of  a  building  or  its  contents,  or  omitting  to  make  known 
any  fact  or  feature  in  the  risk  which  increases  the  hazard 
of  the  same,  shall  render  absolutely  void  a  policy  issued 
on  such  description.  Such  survey,  plan  or  description 
shall  be  taken  to  be  a  warranty  on  part  of  assured,  and 
that  company  would  not  be  liable  for  loss  occasioned  by 
the  use  of  fires  in  buildings  unprovided  with  a  good,  sub- 
stantial stone  or  brick  chimney."  At  foot  of  the  applica- 
tion the  i»^3ured  stipulated  "that  any  misrepresentation  in 
effecting  this  insurance  shall  be  deemed  not  only  a  suffi- 
cient cause  for  canceling  my  policy,  but  render  the  insur- 
ance void."  The  store  was  described  as  containing  "  one 
chimney,  one  stove,  stove  well  secured,  pipe  passes  through 
crock  well  secured ; "  whereas  there  was  no  chimney  and 
no  crock  whatever.  The  day  after  a  fire  was  first  kindled 
in  the  stove,  the  store  burned  down.  Held,  1st,  that  the 
plaintiff,  knowing  the  representation  to  be  false,  assumed 
the  responsibility  of  it ;  2d,  that  evidence  that  the  agent 
of  the  company,  who  was  only  authorized  to  receive  and 
forward  applications,  knew  of  the  true  condition  of  things, 
and  agreed  with  the  plaintift'  that  the  chimney  should  be 
built  and  pipe  secured  before  a  fire  was  built,  and  then 
represented  them  in  application  as  already  existing,  was 
not  competent;  the  ootaining  of  the  policy  under  such 
false  description  was  in  fraud  of  the  company,  and,  being 


mmm 


92 


APPLICATION. 


done  with  the  concurrence  and  for  the  benefit  of  the  plaint- 
iff, he  could  not  recover,  ffeid  further,  that  even  if  com- 
petent, the  plaintiff's  position  would  not  be  improved,  as 
the  agreement  was  never  communicated  to  the  company, 
and  was  not  within  the  authority  of  the  agent  without  such 
communication  and  approval,  and  besides,  if  made,  had 
been  violated  by  the  plaintiff,  by  building  afire  before  the 
chimney  had  been  built  or  the  pipe  secured.  Smith  v.  In- 
surance Co.  24  Penn.  St.  320.     1855. 

§  21.  "Where  premises  insured  against  loss  by  fire 
have  been  thoroughly  examined  by  the  agent  of  insurers, 
it  is  conclusive  upon  the  insurero  as  to  whatsoever  is  ap- 
parent. Michael  v.  Mutual  Ins.  Co.  of  Nashville,  10  La. 
An.  737.     1855. 

§  22.  "Where  to  an  application  was  appended  the 
clause,  "  the  applicant  covenants  and  agrees  that  the  fore- 
going is  a  correct  description  of  the  property  so  far  as  re- 
gards the  value  and  risk  of  the  same ;  Jleldy  that  the  an- 
swers to  the  interrogatories  were  v  rranties  that  the 
description  was  correct,  so  far  as  rega^ued  the  "  value  and 
risk"  only.  Lindsay  v.  Union  Mut.  Ins.  Co.  3  R.  I.  157. 
1855. 

§  23.  In  an  application  on  October  14th,  a  bleaching 
and  dye  factory  v/as  treated  and  described  as  being  com- 
plete, and  on  Decepiber  8,  following,  when  policy  was 
taken  and  premium  paid,  the  agent  put  on  policy  this  en- 
dorsement: "These  buildings  are  in  course  of  construc- 
tion." Although  the  application  was  referred  to  in  policy 
and  made  a  part  thereof  and  warranty  on  part  of  assured ; 
Held,  that  the  policy  must  be  taken  as  "  upon  buildings  in 
course  of  construction."  Gloucester  Manuf.  Co.  v.  Howard 
Fire  Ins.  Co.  5  Gray,  Mass.  497.     1855. 

§  24.  If  the  application  is  referred  to  in  the  policy 
"  as  forming  a  part  thereof,"  it  becomes  a  part  of  the  con- 
tract and  warranty.  Bunitt  v.  Saratoga  County  Mut.  Ins. 
Co.  5  Hill,  N.  Y.  lf.8.  1843.  Kennedy  v.  St.  Lawrence 
County  Mut.  Ins.  Co.  10  Barb.  N.  Y.  285.  1851.  "Wil- 
liams V.  New  England  Mut.  Fire  Ins.  Co.  31  Me.  219. 
1850.  Battles  v.  New  York  County  Mut.  Fire  Ins.  Co. 
41  Me.  208.     1856. 


4 


1 


APPLICATION. 


9a 


J 


§  25.  The  applicant  having  previously  answered  that 
the  buildinga  and  machinery  both  belonged  to  one  per- 
son— himself — except  certain  specified  machinery,  which 
he  stated  belonged  to  one  H.,  and  was  not  to  be  insured 
in  this  policy,  and  having  also  previously  answered  that 
the  "  works "  were  not  operated  on  account  of  the  "  pro- 
prietors," but  were  rented,  was  then  asked :  "  Are  they 
(the  works)  immediately  superintended  by  one  of  the 
proprietors?"  to  which  he  answered,  "Yes;"  the  fact 
being,  as  was  proved,  that  they  were  superintended  by 
the  same  H.,  who  rented  the  works  of  the  applicant  and 
who  was  "  the  proprietor  "  named  in  the  answer  to  a  pre- 
vious question  of  a  part  of  the  machinery  operated  in 
those  very  works ;  Held^  that  there  was  no  misrepresenta- 
tion, and  that  as  the  ambiguity  grew  out  of  the  shape 
of  the  questions  in  the  application,  it  was  chargeable  to 
the  company  who  prepared  them.  Wilson  v.  Hampden 
Fire  Ins.  Co.  4  R.  I.  159.     1856. 

§  26.  The  assured  is  responsible  for  the  truth  of  rep> 
resentations  in  his  application,  if  signed  by  his  agent, 
although  the  agent  signed  it  in  blank  and  left  it  to  be 
filled  up  ^3y  the  company  or  one  of  the  company's  officers, 
unless  the  jury  should  find  that  defendants  had  exceeded 
the  implied  authority  conferred  upon  them  by  the  assured, 
by  sending  them  the  applicatic  i  in  blank.  If  they  had 
exceeded  their  authority,  then  to  that  extent,  and  no 
further,  the  assured  were  absolved  from  all  responsibility 
for  the  representations  contained  in  the  application.  The 
si^ature  and  authority  of  assured's  agent  being  admit- 
ted, any  evidence  to  show  that  it  was  not  their  applica- 
tion, would  be  incompetent.  Liberty  Hall  Association  v^ 
Housatonic  Mut.  Fire  Ins.  Co.  7  Gray,  Mass.  261.     1856. 

§  27.  The  issuing  a  policy  upon  application  in  which 
one  or  more  questions  are  unanswered,  is  a  waiver  on  the 
part  of  the  company  of  such  answers,  although  the  as- 
sured has  answered  negatively  another  interrogatorv, 
"  If  there  are  any  other  circumstances  affecting  the  risk, 
state  them,"  this  being  held  to  cover  only  silcn  facts  as 
had  not  already  been  specially  inquired  about.  Liberty 
Hall  Association  v.  Housatonic  Mut.  Fire  Ins.  Co.  7 
Gray,  Mass.  261.     1856. 


94 


APPLICATION. 


§  28.    When  risk  is  taken  on  faith  of  representations 
made  by  insured,  he  is  required  truly  and  completely  to 
eijpress  his  knowledge  of  the  dangers  to  whicu  the  prop- 
erty is  exposed,  and  the  contract  will  be  void  if  he  does 
not ;  but  where  the  insurers  depend  on  their  own  knowl- 
edge, the  representations  of  the  insured  are  immaterial, 
though  a  withholding  of  information  increasing  the  risk 
would  be  in  bad  faith  and  would  avoid  the  contract.     As 
to  these  matters,  the  insured,  even  in  a  mutual  company, 
deals  with  the  company  as  a  stranger.      Where  agent 
examines  and  describes  the  property,  it  will  not  be  pre- 
sumed that  thfe  application,  which  merely  individuates 
the  property,  was  intended  as  a  representation  of  the 
hazards.      Cumberland  Valley  Mut.  Protection   Co.    v. 
Schell,  29  Penn.  St.  31.     1857. 

§  29.  Where  the  surveyor  of  an  insurance  company, 
made  the  survey  of  the  buildings  to  be  insured,  and  filled 
up  the  application  for  assured  to  sign,  and  assuied  signed 
it  without  examination  upon  the  representation  of  the 
agent,  that  he  had  authority  to  do  these  things,  and,  in  a 
suit  upon  the  policy,  the  authority  of  the  agent  was  not 
denied  by  the  company;  Held^  that  assuming  that  the 
acts  of  the  surveyor  or  agent  were  within  the  scope  of 
his  authority,  it  was  the  same  as  if  done  by  the  company 
itself,  and  though  the  statements  contained,  in  such  appli- 
cation, as  to  the  distance  of  other  neighboring  buildmgs^ 
may  have  l)een  untrue,  the  company  were  estopped  from 
showing  such  to  be  the  case.  Plumb  v.  Cattaraugus 
County  Mut.  Ins.  Co.  18  N.  Y.  392.  1858.  36  N.  Y. 
550,  says  this  case  has  changed  the  rule  which  has  hither- 
to existed  in  this  State. 

§  30.  An  application  for  insurance  on  property  in  a 
certain  building  omitted  to  state  that  there  was  a  steam 
engine  in  the  building.  By  the  rules  and  regulations  of 
the  company,  a  printed  copy  of  which  was  attached  to 
the  policy,  buildings  in  which  steam  power  was  employed 
were  excepted  from  those  that  should  be  insured.  The 
application  was  drawn  by  an  agent  who  knew  of  the 
steam  engine.  Held^  that  where  an  application  was  un- 
intentionally defective,  on   a  point  well  known  to  the 


t 


t 


APPLICATION. 


95 


t 


agent,  the  company,  and  not  the  insured,  should  be  the 
sufferers.  Campbell  v.  Merchants  <fe  Farmers'  Mut.  Fire 
Ins.  Co.  37  N.  H.  35.     1858. 

§  31.  The  application  was  referred  to  and  made  part 
of  the  policy,  and  stipulated,  over  signature  of  assured, 
that,  "  it  was  a  full,  just  and  true  exposition  of  all  the 
facts  and  circumstances  in  regard  to  the  condition,  situa- 
tion, value  and  risk  of  the  property,  as  far  as  the  same 
are  material  to  the  risk."  The  reply  to  question,  as  to 
when  premises  were  worked,  was, "  the  premises  are  con- 
stantly worked."  Held^  that  this  was  to  be  understood  as 
representation  that  the  premises  were  to  be  constantly 
worked,  during  the  usual  and  customary  working  hours 
and  days  for  the  prosecution  of  the  business  for  which 
they  were  employed.  Held^  also,  that  a  misdescription 
of  the  quarter  section  on  which  the  mill  stood,  was  not 
material  to  the  risk,  and  did  not  avoid  the  policy.  Prie- 
ger  V.  Exchange  Mut.  Ins.  Co.  6  Wis.  89.     1858. 

§  32.  In  an  application  for  insurance,  made  part  of 
policy  and  warranty  on  part  of  assured,  was  this  stipula- 
tion, above  the  signature  of  assured :  "  And  the  applicant 
covenants  and  agrees  with  the  said  company,  that  the  fore- 
going is  a  correct  description  of  the  property  requested 
to  be  insured,  so  far  as  regards  the  condition,  situation, 
value,  title  and  risk  on  the  same ;  that  he  holds  himself 
bound  by  the  act  of  incorporation  and  by-laws  of  the 
said  company;  and  that  the  misrepresentation  or  sup- 
pression of  material  facts  shall  destroy  his  claim  for 
damage  or  loss."  HeJd^  that  the  whole  application  must 
be  construed  together  so  as  to  give  effect  to  all  its  parts, 
and  that  assured  was  to  be  held  responsible  for  the  accu- 
racy of  his  answers  only  as  far  as  they  were  material  to 
the  risk ;  their  materiality  to  be  determined  by  the  jury. 
Elliott  V.  Hamilton  Mut.  Ins.  Co.  13  Gray,  Mass.  139. 
1859.  See  also,  Richmondville  Union  Seminary  v.  Ham- 
ilton Mut.  Ins.  Co.  (14  Gray,  Mass.  450.  1860),  which 
following  above  decision,  holds,  that  an  omission  to  men- 
tion, in  the  application,  a  building  situate  within  the  re- 
quired distance,  will  not  avoid  the  policy,  unless  the 
existence  of  such  building  is  material  to  the  risk. 


m 


96 


APPLICATION. 


§  33.  An  application  made  by  a  third  person,  not  on 
its  face  purporting  to  have  been  made  by  the  plaintiff,  or 
on  his  behalf,  nor  signed  by  him,  and  where  there  is  no 
evidence  that  its  contents  were  assented  to  or  known  by 
plaintiff,  is  not  binding  on  him.  And  though  policy  stip- 
ulated "that  the  contract  was  made  and  accepted  witn 
reference  to  a  survey  on  file  in  the  office  of  the  company," 
the  plaintiff  is  not  thereby  chargeable  with  constructive 
notice  of  any  statements  or  representations  of  a  promis- 
sory or  executory  nature  embraced  in  the  application, 
Denny  v.  Conway  Stock  «fe  Mut.  Ins.  Co.  13  Gray,  Mass. 
492.     1859. 

§  34.  The  word  "  survey,"  in  a  policy  of  insurance, 
imports  only  a  plan  and  description  of  the  present  exist- 
ing state,  condition  and  mode  of  use  of  the  property. 
Denny  v.  Conway  Stock  &  Mut.  Ins.  Co.  13  Gray,  Mass. 
492.     1859. 

§  35.  Where  application  was  referred  to  in  policy  as 
forming  a  part  thereof  and  wan  anty  on  the  part  of  as- 
sured, and  such  application  contained,  at  the  bottom  of 
the  written  answers,  the  following  clause :  "  And  the 
said  applicant  hereby  covenants  and  agrees  that  the  above 
is  a  full,  just,  and  true  exposition  of  all  the  facts  and  cir- 
cumstances concerning  the  condition,  situation  and  value 
of  the  risk  so  far  as  they  are  material ; "  Jleldf  that  the 
effect  of  any  misrepresentations  or  concealments  upon  the 
part  of  the  assured  must  be  determined  by  their  material- 
ity. Longhurst  v.  Conway  Fire  Ins.  Co.  U.  S.  Dis.  Ct. 
Northern  Division  Iowa,  October  Term,  1861. 

§  36.     Where  application  was  referred  to  in  policy  as 
forming  a  part  thereof,  and  made  a  warranty  on  the  part  of 
the  assured,  and  parol  evidence  was  offered  to  show  that 
the  agent  of  the  company,  intrusted  with  blank  policies 
and  power  to  make  contracts  of  insurance,  filled  up  such 
application  and  obtained  the  signature  of  the  assured  with- 
out any  knowledge  on  the  part  of  the  assured  of  the  con 
tents  of  such  application ;  Jleld,  that  by  signing  the  appli 
cation  the  assured  made  it  his,  and  became  responsible  for 
the  statements  therein  contained ;  and  evidence  was  there 
fore  incompetent  to  show  a  knowledge  on  part  of  the 


APPLICATION. 


97 


afijent  of  the  facts  misrepresented  or  concealed  in  such  ap- 
plication. But  where,  upon  trial,  the  defendants  had  in- 
troduced evidence  to  show  a  concealment  of  buildings 
within  eight  rods  of  the  one  insured,  and  required  to  be 
made  known  by  the  terms  of  the  policy ;  Ileld^  that  the 
agent,  who  had  filled  up  the  application,  might  be  allowed 
to  testify  as  to  the  fact  of  his  V  uowledge  of  the  existence 
of  such  buildings,  alleged  to  have  been  concealed.  Long- 
hurst  V.  Conway  Fire  Ins.  Co.  U.  S.  District  Coiyt, 
Northern  Division,  Iowa,  October  Term,  1861. 

§  37.  One  who  accepts  a  policy  of  insurance  in  which 
it  is  expressly"  provided  tnat  it  is  agreed  and  declared  that 
the  policy  is  made  and  accepted  upon  and  in  reference  to 
the  application  filed  in  the  office,  is  thereby  concluded 
from  denying  that  the  application  is  his,  and  cannot  set 
up  that  it  was  made  by  an  agent  employed  by  him  to  pro* 
cure  insurance  upon  his  property,  but  without  authority 
to  bind  him  by  representations  in  the  application.  Draper 
V.  Charter  Oak  Fire  Ins.  Co.  2  Allen,  569.     1861. 

§  38.  A  policy  of  insurance  expressed  to  be  issued  on 
property  describea  in  a  certain  application,  "which  is 
hereby  declared  to  be  a  part  of  this  policy,  and  a  warranty 
on  the  part  of  the  "  assured,  and  to  be  "  made  and  accept- 
ed in  reference  to  the  written  and  printed  application 
whereon  it  is  issued,'^  is  not  void,  if  no  written  applica- 
tion was  ever  made ;  nor  if  issued  upon  a  defective  appli- 
cation, if  that  application  was  correct  ^so  far  as  it  went. 
Blake  v.  Exchange  Mut.  Ins.  Co.  12  Gray,  Mass.  265. 
1858. 

§  39.  In  an  application,  made  part  of  a  policy  of  in- 
surance on  property  in  the  second  story  of  a  large  build- 
ing, and  providing  that  thie  description  therein  given  is  a 
full  and  time  description  of  the  property  to  be  insured, 
and  of  all  circumstances  in  relation  thereto,  material  to  the 
risk,  and  that  the  questions  not  answered  shall  be  con- 
strued most  favorably  to  the  risk,  an  omission  in  answer 
to  the^ question,  "  Who  occupies  it?"  to  state  the  occupa- 
tion and  occupants  of  all  tne  rooms,  does  not  avoid  the 
policy,  if  the  jury  are  satisfied  that  those  not  disclosed 


f 


98 


APPLICATION. 


irake  the  risk  less  hazardous  than  it  would  have  been  if 
the  whole  building  had  been  occupied  as  stated  in  the  an-^ 
swer.    Haley  v.  Dorchester  Mut.  Fire  Ins.  Co.  12  Gray, 
Mass.  545.     1859. 

§  40.  An  insurance  company  issuing  a  policy  at  the 
instance  of  another  company  to  whom  the  original  appli- 
cation for  insurance  was  made,  or  at  the  instance  of  the 
broker  employed  by  the  latter  to  examine  the  premises, 
is 'not  chargeable  with  notice  of  material  facts,  known  to 
the  latter  company  and  the  broker,  but  not  communicated 
to  the  former.  Salms  v.  Rutgers'  Fire  Ins.  Co.  8  Bosw.  N. 
Y.  578.     1861. 

§  41.  Where  a  policy  refers  to  the  application  for  a 
description  of  the  property  insured,  the  application  must 
be  regai'ded  the  same  ias  if  incorporated  into  the  policy  it- 
self. Gahagan  v.  Union  Mut.  Ins.  Co.  43  N.  H.  176. 
1861. 

§  42.  Where  it  was  stipulated  in  a  policy  against  fire 
that  the  same  was  made  and  accepted  in  reference  to  con- 
ditions annexed,  which  were  to  be  used  and  resorted  to  in 
order  to  explain  the  rights  and  obligations  of  the  parties, 
and  one  of  the  conditions  was  that,  if  the  policy  should  be 
made  and  issued  upon  a  survey  and  description  of  the 
property  insured,  such  survey  and  description  should  be 
taken  and  deemed  to  be  a  part  and  portion  of  such  policy, 
and  a  warranty  on  the  part  of  the  assured ;  Held^  that  a 
written  application  signed  by  the  assured,  containing  a 
survey  and  description,  was  a  warranty,  and  not  a  mere 
representation,  and  that  if  the  survey  and  description  was 
false,  no  recovery  could  be  had  upon  the  policy,  -^tna 
Ins.  Co.  V.  Grube,  6  Minn,  82.     1861. 

§  43.  Where  the  statements  of  an  application  are  a 
warranty,  a  policy  will  be  rendered  invalid  if,  in  reply  to 
a  question  in  the  application  calling  for  the  amount  of  in- 
cumbrance upon  the  property,  and  a  full  and  accurate 
statement  of  the  true  title  and  interest,  the  answer  is  that 
the  property  is  mortgaged  tor  $6,600,  when  it  is  in  fact 
mortgaged  for  $6,684 ;  and  if,  in  reply  to  the  question, 
"  How  are  the  several  stores  occupied  ?  state  fully,  giving 


APPLICATION. 


99 


a 

to 


at 
ict 
n, 


the  tenants,"  the  answer  is,  "  See  plan,"  and  the  plan  re- 
ferred to  does  not  disclose  the  names  of  all  the  tenants. 
Abbott  V.  Shawmut  Fire  Ins.  Co.  3  Allen,  Mass.  213. 
1861. 

§  44.  The  written  application  for  insurance  which 
usually  precedes  the  execution  of  a  policy,  does  not  con- 
stitute a  part  of  the  contract  of  insurance,  in  such  sense 
as  to  require  it  to  be  filed  as  a  part  of  the  foundation  of 
the  suit.  Commonwealth  Ins.  Co.  v.  Monninger,  18  Ind. 
352.     1862. 

§  45.  A  mere  indication  in  the  policy  of  the  place 
where  the  application,  which  usually  precedes  the  execu- 
tion of  a  policy,  could  be  found  on  file,  does  not  make  it  a 
part  of  the  policy.  Commonwealth  Ins.  Co.  v.  Monninger, 
18  Ind.  352.     1862. 

§  46.  If  an  application  for  insurance  to  a  mutual  fire 
insurance  company  is  expressly  made  a  part  of  the  policy, 
and  contains  a  clause  inserted  after  the  printed  questions, 
by  which  the  applicant  covenants  th;it  "the  foregoing  is  a 
just,  full,  and  true  exposition  of  all  the  facts  and  circum- 
stances in  regard  to  the  condition,  situation,  value  and  risk 
of  the  property  to  be  insured,  so  far  as  the  same  are  known 
to  the  applicant,  or  are  material,  and  on  all  the  fticts 
inquired  for ; "  the  omission  to  disclose  several  buildings 
within  one  hundred  feet  of  the  property  insured,  in  reply 
to  a  question,  "  What  is  the  distance  and  direction  from 
each  other,  and  from  other  buijtiings  within  one  hundred 
feet,  and  how  are  such  other  buildings  occupied  ?  Make 
plan  on  back  hereof,  showing  the  relative  position  of  all 
the  buildings,"  will  avoid  the  j)olicy,  although  such  omis- 
sion is  not  material,  and  the  application  also  contains  a 
provision  that  the  applicant  further  agrees  that  *'  the  mis- 
representation or  suppression  of  material  facts  shall  de- 
stroy his  claim  for  damage  or  loss,"  and  an  article  of  the 
by-laws,  subject  to  which  the  policy  was  issued,  provides 
that  "any  policy  issued  by  this  company  shall  be  void, 
unless  the  assured  shall  have  made  in  his  application  for 
insurance  a  true  representation  of  the  risk."  Haidy  v. 
Union  Mut.  Fire  Ins.  Co.  4  Allen,  Mass.    217.    1862. 

§  47.    If,  prior  to  the  passage  of  Massachusetts  stat- 


I 

I 


i 


100 


APPLICATION. 


ute  of  1861,  c.  152,  a  policy  of  insurance  was  issued  under 
the  conditions  and  limitations  expressed  in  the  by-laws  of 
the  insurance  company,  one  of  which  was  that,  when  any 
property  insured  should  he  taken  possession  of  by  a  mort- 
gagee, the  policy  should  be  void,  and  the  application, 
which  was  exj^ressly  made  a  part  of  the  policy,  contained 
an  agreement  that  if  the  answers  therein  did  not  give  a 
full,  just  and  true  exposition  of  all  the  facts  and  circum- 
stances in  relation  to  the  condition,  situation,  value  and 
risk  of  the  property  to  be  insured,  the  policy  should  be 
void,  the  omission  to  disclose  in  the  application  the  fact 
that  possession  of  the  premises  to  be  insured  had  been 
taken  under  a  second  mortgage  thereof,  and  a  subsequent 
re-taking  of  possession  under  the  same  mortgage,  with- 
out the  consent  of  the  under^mters,  will  avoid  the  policy. 
Jacobs  V.  Eagle  Mut.  Fire  Ins.  Co.  7  Allen,  Mass.  132. 
1863. 

§  48.  A  description  of  premises  sought  to  be  insured 
in  the  application,  in  reference  to  the  uses  to  which  they 
are  then  being  applied,  is  not  to  be  regarded  as  a  warranty 
that  they  shall  not  be  used  during  the  existence  of  the 
policy  for  any  other  purpose.  The  application  is  a  mere 
representation  of  the  assured,  and  he  is  not  bound  to 
set  it  out  and  prove  its  truth.  Its  falsity  is  a  matter  of 
defence.  New  England  Fire  «fe  Marine  Ins.  Co.  v.  Wet- 
more,  32  111.  221.     1863. 

§  49.  Under  the  Massachusetts  statute  of  1861,  which 
provides  that  "  in  all  insurance  against  losses  by  fire,  the 
conditions  of  the  insurance  shall  be  stated  in  the  body  of 
the  policy,  and  neither  the  application  of  the  insured  nor 
the  by-laws  of  the  compari^,  as  such,  shall  be  considered 
as  a  warranty  or  part  of  the  contract,"  an  express  condi- 
tion in  the  body  of  a  policy  that  the  application  contains 
a  just,  full  and  true  exposition  of  all  the  facts  and  circum- 
stances in  regard  to  the  condition,  situation,  value  and  risk 
of  the  property,  so  far  as  the  same  aie  known  to  the  in- 
sured, and  material  to  the  risk,  will  avoid  the  policy  in 
case  the  application  contains  material  misrepresentations 
in  those  respects.  Barre  Boot  Co.  v.  Milford  Mut.  Fire 
Ins.  Co.  7  Allen,  Mass.  42.  1863.  Campbell  v.  Charter 
Oak  Fire  <fe  Marine  Ins.  Co.  7  Allen,  Mass.  45,  note.  1863. 


' 


APPLICATION. 


101 


§  50.  When  the  agent  of  an  insurance  company  ha»' 
authority  only  to  receive  and  forward  applications  for 
insurance,  parol  evidence  is  not  receivable  to  show  that 
the  agent  failed,  in  ^vriting  the  application,  to  take  down 
the  statements  made  by  the  applicant,  or  changed  them. 
But  if  the  agent  is  empowered  to  pass  upon,  and  did  pass 
upon  the  risk  in  question,  without  submitting  it  to  his 
principal,  and  failed  to  take  down  correctly  the  facts 
stated  by  the  applicant,  in  ignorance  of  which  the  ap- 
plication was  signed,  in  the  absence  of  any  stipulation 
m  the  policy  to  the  contrary,  the  principal  is  estopped 
from  asserting  that  he  has  been  misled  by  the  representa- 
tions of  the  application.  Ayres  v.  Hartford  Fire  Ins.  Co. 
17  Iowa,  176.     1864. 

§  51.  Where  a  policy  contains  no  covenant  making 
the  answers  of  the  assured  to  questions  in  the  application 
warranties,  the  answers  are  j-epresentations  only,  and  a 
mistake  or  false  answer  does  not  necessarily  avoid  the 
policy.  Columbia  Ins.  Co.  y.  Cooper,  50  Penn.  St.  331. 
1865. 

§  52.  When  the  application  is  made  part  of  the 
policy,  its  representations  become  warranties,  and  where 
it  dei^ribes  property  as  contained  in  a  certain  building, 
no  recovery  can  be  had  while  the  property  is  in  another 
building.  Eddy  St.  Iron  Foundry  v.  Hampden  Stock  <fe 
Mut.  F.  Ins.  Co.  1  Clifford,  C.  C.  300.     1859. 

§  53.  The  application  bein^made  part  of  the  policy, 
its  statements  are  waiTanties.  Fierce  v.  Empire  lus.  Co. 
62  Barb.  636.     1862. 

§  54.  The  policy  requred  "  persons  desirous  of  making 
insurance  to  dellvei'  in  to  the  agent  the  following  particu- 
lars "  among  which  were  "  particularly  whether  any  manu- 
factory or  hazardous  trade  is  carried  on,"  and  required 
that  if  certain  machinery  were  used  it  should  be  particu- 
larly described,  but  the  blank  application  made  no  allusion 
to  hazardous  trades  or  to  machinery,  and  oii  the  same 
being  signed  the  defendant's  agent  accepted  it,  and  re- 
ceived tiie  premium.  Hazardous  goods  and  the  prohibited 
machinery  were  in  use  on  the  premises.  This  agent,  when 
taking  a  short  risk  on  the  same  premises  a  year  before,  had 


// 


I 


102 


APPLICATION. 


received  full  particulars;  had  been  referred  to  another 
company  for  information ;  the  plaintiff's  business  was  well 
known  by  advertisements ;  Held^  if  the  plaintiffs  previous 
knowledge,  derived  from  the  former  policy,  is  to  be  used 
against  him,  the  company's  previous  knowledge  should  be 
used  against  them  in  the  same  manner. 

That  deliver  in  meant  in  writing^  and  that  the  plaintiff 
did  furnish  all  the  information  he  was  required  to  do, 
the  defendants  not  having  requested  more,  and  the  com- 
pany are  responsible  if  their  aeent  accepted  an  insufficient 
representation.  Actual  knowledge  is  not  essential  if  the 
insurer  had  the  means  of  knowing  a  fact  by  inquiry  at  a 
particular  place.  That  the  company  by  having  twice 
before  accepted  just  such  insufficient  proposals  were  to 
blame  for  leading  their  agent  to  believe  that  his  imperfect 
conduct  might  be  repeated.  Davis  v.  Scottish  Prov.  Ins. 
Co.  16  U.  C.  C.  P.  176.    1865. 

• 

§  55.     Condition  that  "  applications  for  insurance  on 
^      manufactories  where  steam  is  used  must  be  approved  at 
the  head  office."    HeVI^  not  to  apply  to  a  vacant  distillery 
not  contemplated  to  be  put  in  operation.     Rowe  v.  Lon- 
don <fc  Lancas.  F.  Ins.  Co.  12  Grant's  Ch.  311.     1866. 

• 

§  56.  "The  applicant  is  requested  to  answer  the 
above  questions  fully."  Ileld^  such  request  in  the  appli- 
cation is  no  notice  ^hat  such  answers  are  indispensable,  to 
the  contract,  or  to  the  authority  of  an  agent  to  give  inter- 
mediate insurance.  Rowe  v.  Lond.  «fe  Lancas.  P.  Ins.  Co. 
12  Grant's  Ch.  311.     1866. 

§  57.  When  the  company's  agent,  kno^ving  all  the 
facts,  draws  up  the  application,  it  is  conclusive  upon  the 
company  by  statute  in  Maine,  though  containing  a  mate- 
rial misrepresentation.  Caston  v.  IVtonmouth  Mut.  F.  Ins. 
Co.  54  Me.  170.     1866. 

^  58.  An  agent,  authorized  to  act  for  the  company  in 
making  out  applications,  is  not  alone  the  applicant's  agent, 
and  notice  to  him,  within  the  scope  of  his  authority,  is 
notice  to  the  company  (though  contra^  if  he  had  no  power 
except  to  forward  applications,  and  in  taking  them  is  the 
applicant's  agent). 


APPLICATION. 


103 


When  the  agent  is  applied  to  for  insurance  on  property- 
belonging  to  heirs  and  for  their  benefit,  and  he,  having 
power  to  take  risks,  says  the  policy  must  issue  in  the  name 
of  the  ancestor,  he  is  acting  within  the  scope,  of  his 
agency,  and  the  policy  is  not  void  when  he  makes  the 
application  accordingly,  having  full  knowledge  of  the 
facts.    Anson  v.  Winnesheik  Ins.  Co.  23  Iowa,  84.    1867. 

§  59.  Where  the  policy  declares  the  survey  or  de- 
scription to  be  "  a  part  of  it "  and  a  "  warranty,"  such 
survey  is  to  be  so  construed ;  it  cannot,  therefore,  be  left 
to  the  jury  to  say  whether  the  particulars  wherein  the 
survey  did  not  correspond  to  the  premises  increased  the 
risk  or  not — such  rule  is  true  of  representations,  but  not 
uf  warranties,  which  may  be  insisted  on  according  to  their 
tenor. 

Qucere.  Whether  the  company,  telying  on  one  sur- 
vey, and  the  assured  supposing  another  is  meant,  the 
minds  of  the  parties  ever  met  in  any  compact. 

Per  Miller^  J.y  dmenting.  That  referring  to  a  survey 
taken  at  another  time  and  for  another  company  does  not 
make  such  survey  party  of  the  policy,  its  designation  re- 
lating only  to  the  description  of  the  property.    LeRoy  v. 


Market  Fire  Ins.  Co.  39  N.  Y.  90.     1868. 

§  60.  When  an  executed  policy  is  delivered,  and 
with  it  a  survey  to  be  filled  out — the  policy  not  being 
made  conditional  upoi;i  the  procuring  of  the  survey,  a: 
its  delivery  being  unqualified — such  subsequent  survey, 
conditions  or  warranty,  is  wholly  inoperative;  the  con- 
tract was  complete  on  delivery  of  the  polic^y.  LeRoy  v. 
Park  Fire  Ins.  Co.  39  N.  Y.  56.     1868. 

§  61.  The  policy  making  the  survey  a  part  of  it  and 
a  warranty,  its  statements  become  warranties.  The  sur- 
vey covenanted  that  "  the  foregoing  is  a  full,  just  and  true 
exposition  of  all  the  facts  so  far  as  known  to  the  applicant 
and  material  to  the  risk."  Held^  those  matters  as  to  which 
there  were  questions  were  thereby  made  "  material  to  the 
risk,"  by  express  contract.  But  there  must  be  a  substan- 
tial breach  of  the  warranty  to  defeat  the  actioii. 

One  question  was,  "  Are  the  outside  walls  brick  or 
stone  ?    Note,  if  the  building  be  wood,  omit  replies  to 


104 


APPLICATION. 


these  questions."  The  answer  was  "  Brick."  Held^  the- 
point  of  the  question  was  whether  they  were  of  wood  or 
the  more  indestructible  material,  brick  or  stone.  And  a 
.  defence  that  "the  outside  walls  were  not  all  brick,"  is  not 
a  good  allegation  of  breach  of  warranty,  for  the  walls  may 
be  partly  stone  and  partly  brick.  Cox  v.  JEtna  Ins.  Co. 
29  Ind.  686.     1868. 

§  62.  A  condition  required  the  application  to  state 
the  situation  of  the  buildings  with  respect  to  contiguous 
buildings,  their  construction  and  materials,  and  how  these 
were  occupied.  The  application  did  not  state  occupancy, 
Held^  that  by  issuing  a  policy  on  the  application  the  com- 
pany show  they  regarded  it  as  sufficient.  Peoria  Mar.  and 
F.  Ins.  Co.  V.  Perkins,  16  Mich.  380.     1868. 

t63.  Condition  that  the  application  must  be  sent  to 
ome  office  before  the  risk  is  assumed.  An  endorse- 
ment of  "  Authorized  Nov.  5, 1866,  4  per  cent."  is  proof  of 
such  notice,  and  subsequent  receipt  of  premiums  and  in^ 
vestigating  the  loss  is  a  recognition  of  validity  and  estops 
the  company.  Ins.  Co.  of  North  Am.  v.  McDowell,  50 
m.  120.     1869. 

§  64.  The  policy,  after  stating  what  the  application 
must  contain  and  the  consequences  of  misdescription, 
adds,  "  But  the  company  will  be  responsible  for  tne  ac- 
curacy of  surveys  made  by  its  agents."  Held^  that  "  sur- 
vey" has  a  general  meaning  in  insurance,  including  the 
whole  application  when  made  by  the  agent,  and  his  in* 
accuracy,  where  the  assured  has  answered  correctly,  binds 
the  company.  (Denying  Denny  v.  Ins.  Co.  §  34,  above.) 
Mayv.  Buckeye  Mut.  Ins.  Co.  25  Wis.  291.     1870. 

§  65.  If  the  application  is  made  out  by  the  agent  in 
the  applicant's  absence,  and  he  is  unable  to  read,  and  it  is 
not  read  to  him,  and  he  signs  it  on  the  agent's  assurance 
that  it  was  all  right,  and  the  question  as  to  incumbrances 
is  left  unanswered,  this  is  a  waiver  of  the  duty  of  dis- 
closure. Geib  V.  Enterprise  Ins.  Co.  1  Dillon,  C.  C.  449. 
1870. 

§  ^Q.  In  consequence  of  an  agreed  reduction  in  the 
premium,  a  new  policy  was  issued  in  place  of  a  former  one, 


APPLICATION. 


105 


no  new  application  being  made.  Held^  that  in  the  absence 
of  contrary  evidence,  this  policy  was  based  on  the  existing 
written  application  made  for  the  other  policy,  and  a  false 
answer  as  to  encumbrances  therein  avoided  it.  Martin  v. 
Home  Ins.  Co.  20  U.  C.  C.  P.  447.     1870. 

§  67.  Where  the  survey  refeiTed  to  and  made  part  of 
the  policy  was  false  and  inaccurate,  the  assured  cannot 
recover,  although  he  supposed  a  different  survey  was  the 
one  referred  to ;  and  a  charge  to  the  effect  that  the  minds 
of  the  parties  met  in  issuing  the  policy,  but  not  in  the 
annexing  of  the  conditions  destroying  it,  is  erroneous.  Le 
Koy  v.  Market  F.  Ins.  Co.  6  Hand.  80.     1871. 

§  68.  A  policy  on  the  "  estate  of  D.  Ross,"  issued  to 
the  administratrix,  contained  printed  clauses :  that  if  any 
survey  is  referred  to,  such  survey  shall  be  deemed  a  "  war. 
rantv,"  and  that  it  was  made  with  "  reference  to  the  survey 
on  nle  at  this  office."  The  only  survey  ever  made  was 
made  the  previous  year  by  the  deceased,  when  insuring  in 
another  company,  and  the  administratrix  had  no  knowl- 
edge of  its  contents ;  it  was  then  on  file  in  the  office  of  the 
defendant's  agent  at  Utica,  and  a  subsequent  erection  of 
neighboring  buildings  had  rendered  its  description  in- 
accurate. HeM^  it  is  not  to  be  inferred  that  such  previous 
survey  should  stand  as  the  application  for  this  insurance. 
Nor  aoes  the  fact  that  this  policy  insures  a.  further  amount 
"  on  movable  machinery,  as  per  survey  on  file  at  office  of 
T.  (the  agent)  at  Utica,"  render  it  the  survey  mentioned 
in  the  'printed  clauses ;  and,  as  to  the  machinery,  such 
reference  is  only  for  convenience  of  identification,  and  has 
not  made  the  other  statements  therein  a  part  of  the  con- 
tract. A  condition  precedent  cannot  be  established  by 
inference ;  it  must  l)e  explicit.  (Affirming  s.  c.  51  Barb. 
647.)     Clinton  v.  Hope  Ins.  Co.  G  Hand.  454.     1871. 

§  69.  When  the  application  omits  the  answers  to 
questions,  and  a  policy  is  issued  thereon,  the  answers  are 
waived.  Lorillard  F.  Ins.  Co.  v.  McCulloch,  21  Oh.  St. 
170.     1871. 

§  70.  The  applicant  asked  the  agent  to  come  and  see 
the  premises  some  miles  away,  and,  on  the  latter  saying  he 


106 


ARBITRATION   AND   APPRAISEMENT. 


was  well  acquainted  with  them^  informed  him  that  the 
upper  story  was  used  as  a  billiard  room  and  the  rest  as 
a  dwelling,  when,  in  fact,  there  was  also  a  billiard  room 
and  bar  below.  Held,,  the  misdescription  was  not  the  act 
of  the  agent,  which  would  estop  the  company.  Sarsfield 
V.  Metropolitan  Ins.  Co.  61  Barb.  479.     1871. 

§  71.  Plaintiff,  denying  the  genuineness  of  the  applica- 
tion produced  by  the  defendant,  testifies  to  having  signed 
a  different  one,  in  proof  of  the  contents  of  which,  evidence 
of  the  conversations  between  the  assured  and  the  agent  in 
putting  it  in  •svriting,  and  the  statement  given  to  be  em- 
bodied in  it,  are  adlmissible.  N.  Am.  Fire  Ins.  Co.  v. 
Throop,  23  Mich.  146.     1871. 

§  72.  A  policy  refers  to  "  assured's  application.  No.  127, 
which  is  his  warranty  and  a  part  hereof"  The  only  appli- 
cation was  a  verbal  one.  Held,,  not  a  part  of  the  contract, 
and  only  a  representation,  and  to  invalidate  the  policy 
must  be  shown  to  have  emi)raced  a  statement  of  fact,  not 
only  untrue  and  fraudulently  made,  but  material  to  the 
risK;  and  that  the  policy  uses  the  words  of  the  verbal 
application  that  the  roof  was  good,  does  not  maKe  it  a 
warranty  by  incorporation,  nor  change  its  character  of 
representation.  Newman  v.  Springfield  F.  cfe  M.  Ins.  Co. 
17  Minn.  123.     1871. 

See  Consummation  of  Contract.  Also  Agent,  §  15,  21,  80,  36,  87,  86,  70,  73, 
78,  86,  87,  88,  91.  By-Laws  and  Conditions,  3,  4.  Concealment,  10, 19, 28, 80. 
Construction,  9.  Description  of  Property,  8,  11,  13.  Distance  of  Other  Build- 
ings, 5,  7, 11,  13,  14, 17,  18,  19,  20,  22.  Encumbrance,  6,  8,  9,  12, 14,  20,  23, 
26,  27,  31,  82,  36,  37,  88,  43,  46,  49,  54,  55,  56.  Other  Insurance,  39.  Parol 
Evidence,  3,  7,  14,  15,  17,  29.  Pleading  and  Practice,  52.  Reform  of  Policy, 
4, 15,  18,  19.  Title,  41,  45,  60,  02,  64,  68.  Two-Thirds  or  Three-Fourths 
Clause,  4.  Use  and  Occupation,  16,  17,  18,  49.  Value,  5.  Waiver,  9.  War- 
ranty and  Representation,  5,  14, 16,  33,  23,  30,  39.    Watchman,  6. 


ARBITRATION  AND  APPRAISEMENT 

§  1.  Stipulation  of  policy,  that  in  case  of  any  ios? 
dispute,  it  should  be  referred  to  arbitration.  DeclaratioiA 
showed  that  there  had  been  no  reference.  Held,,  that  the 
agreement  of  the  parties  could  not  oust  the  court,  though 
if  there  had  been  any  reference,  or  any  was  pending,  it 
might  be  a  bar.    Kill  v.  Hollister,  1  Wilson,  129.     1746. 


ARBITRATION   AND   APPRAISEMENT. 


107 


§  2.  Under  the  clause  or  condition  in  policies  of  insur- 
ance, that  in  case  of  any  dispute  between  the  parties  it 
may  be  submitted  to  arbitration,  <fec. ;  Ileld^  that  the 
courts  are  not  ousted  of  their  jurisdiction,  nor  can  they 
compel  the  parties  to  submit  to  a  reference  in  the  progress 
of  a  suit,  when  one  of  them  has  refused  to  submit  to 
arbitration.  Scott  v.  Phoenix  Assurance  Co.  1  Stuart's 
Lower  Canada,  152.  1823.  See  also  Scott  v.  Aveiy,  20 
Law  «fe  Equity,  327.     1853. 

§  3.  Condition  that  if  any  difference  should  arise  upon 
any  claim,  it  should  be  submitted  to  arbitration.  The  in- 
surance office  denied  all  liability,  and  the  insured,  claiming 
that  the  condition  only  required  a  reference  as  to  amount, 
and  did  not  apply  to  a  case  where  objection  was  made  to 
the  right  to  recover  altogether,  brought  an  action  on  the 
policy.  Heldy  that  the  action  was  maintainable.  Gold- 
stone  V.  Osborn,  2  Carr.  &  Payne,  550  (12  E.  C.  L.  726). 
1826. 

§  4.  Where  a  clause  in  policy  provided  for  a  refer- 
ence to  arbitrators  of  matters  in  dispute  between  company 
and  assured,  and  company  set  up  defence,  that  assured  was 
bound,  before  instituting  suit,  to  tender  an  arbitration. 
Held^  that  when  the  claim  was  made  by  plaintiff  for  the 
loss,  if  the  defendant  had  offered  to  refer  the  question,  to 
arbitrators,  the  plaintiff  would  have  been  bound  to  accept 
it ;  but  on  refusal  of  defendants  to  pay,  without  seeking 
to  avail  themselves  of  the  right  given  oy  that  article,  the 
company  must  be  considered  as  having  w^aived  it.  Millau- 
don  V.  Atlantic  Ins.  Co.  8  La.  557.     1835. 

§  5.  In  a  reduction  by  an  insurance  office  of  a  sub- 
mission and  decree  arbitral,  whereby  it  was  found  that 
certain  machinery  destroyed  by  fire  had  been  over-valued, 
it  was  averred,  as  a  reason  for  reduction,  that  the  insurance 
was  fraudulently  eft'ected  by  the  defender,  with  the  inten- 
tion of  destroying  the  property  by  fire  and  obtaining  an 
exorbitant  sum  from  the  office.  A  corresponding  issue 
was  granted,  and  a  verdict  returned  that  the  insurance 
was  effected  on  a  fraudulent  over- valuation  of  the  machin- 
ery, but  not  with  the  intention  of  destroying  the  same  by 
fire.    Held^  that  this  was  in  substance  a  verdict  for  the 


108 


ARBITBATION  AND   APPRAISEMENT. 


defender,  and  that  the  pursuers  had  failed  to  establish  the 
reason  for  a  reduction.  Hercules  Ins.  Co.  v.  Hunter,  15 
Cases  in  the  Court  of  Sessions,  800.     1837. 

§  6.  An  award  provided  that  the  assured  should  as- 
sign to  the  underwriter  a  policy  taken  in  another  comj)any. 
Seld^  that,  if  it  was  on  the  same  property,  the  provision 
was  proper ;  and,  if  void,  it  did  not  avoid  the  balance  of 
thie  award ;  and  the  insured  might  sue,  though  there  had 
been  no  tender  of  performance.  Nichols  v.  Kensselaer  Co. 
Mut.  Ins.  Co.  22  Wend.  N.  Y.  125.     1839. 

•  §  7.  A  submission  to  an  award,  executed  by  author- 
ity of  the  board  of  directors,  cannot  be  revoked  by  the 
president  and  secretary  of  the  company,  though  the  two 
latter  were  authorized  by  the  charter  to  carry  on  the  busi- 
ness without  the  presence  of  the  board,  subject  to  its  rules, 
regulations,  <fec.  Notice  of  the  meetings  of  the  arbitrators 
is  immaterial,  when  both  parties  appeared  at  the  trial. 
Madison  Ins.  Co.  v.  Griffin,  3  Ind.  277.     1852. 

§  8.  The  mortgagor  and  insured  of  stock  of  ^oods, 
cannot  without  consent  of  mortgagee,  to  whom  policy  is 
made  payable  in  case  of  loss,  submit  in  a  case  of  loss  the 
amount  of  loss  to  arbitrators,  so  as  to  make  their  award 
binding  upon  mortgagee.  Held^  "  that  payable  in  case  of 
loss  to  mortgagee,''  was  an  assignment  in  legal  effect  to  the 
latter.  Brown  v.  Roger  Williams  Ins.  Co.  5  R.  I.  394. 
1858.     Brown  v.  Hartford  Ins.  Co.  5  R.  I.  394.     1858. 

§  9.  A  condition  of  a  policy  providing  for  the  sub- 
mission of  any  dispute  or  ciifference  in  respect  to  a  loss, 
to  arbitration,  is  not  a  bar  to  an  action  on  the  policy  to 
recover  a  loss,  unless  such  arbitration  has  been  actually 
had.  Roper  v.  Lendon,  1  Ell.  &  Ell.  Q.  B.  825.  (102 
Eng.  C.  U)     1859. 

§  10.  Where  the  policy  provides  for  one  mode  of  ap- 
praisal, and  the  company  pursues  other  modes,  it  may 
warn  the  assured  that  the  first  one  is  not  waived,  and  so 
have  both  modes.  But  there  may  be  a  waiver  in  spite  of 
such  warning,  which  is  a  question  for  the  jury  to  decide. 
Davis,  Hackett  <fe  Co.  v.  Western  Mass.  Ins.  Co.  8  R.  I. 
277.     1866. 


ASSESSMENTS. 


109 


§  11.  The  appraisers  may  ascertain  the  damage  in 
any  way  they  think  proper ;  they  are  not  bound  by  the 
san^e  strict  rules  of  judicial  investigation  as  arbitrators. 
De  Groot  v.  Fulton  F.  Ins.  Co.  4  Rob.  (N.  Y.  Sup.  Ct.) 
504.     1867. 

§  12.  Right  of  partner  to  bind  his  absent  partner  by 
agreeing  to  appraise  the  extent  of  loss.  Brink  v.  New 
Amsterdam  Ins.  Co.  5  Robertson  (N.  Y.)  104.    1867. 

§  13.  In  pursuance  of  a  provision  in  the  polio/,  that 
the  loss  shall  be  estimated  by  appraisers,  the  parties  chose 
appraisers,  but  they  were  not  sworn.  Held^  This  was  not 
a  submission  to  arbitration  in  a  legal  sense,  which  sup- 
poses a  controversy,  but  merely  carrying  out  a  provision 
of  the  policy,  and  the  finding  is  a  mere  report  as  evidence, 
not  as  a  bar  to  a  suit,  and  extinguishes  no  cause  of  action, 
and  therefore  the  proceeding  is  not  void  for  want  of  the 
oath.  Zallee  v.  Laclede  Mut.  F.  &  M.  Ins.  Co.  44  Mo.  530. 
1869. 

See  Assignment,  §  12.    Evidence,  00°. 


ASSESSMENTS. 


§  1.  The  charter  provided  for  election  of  three  direct- 
ors, out  of  whom  a  president  should  be  chosen  by  the 
members.  Assessments  resisted,  because  the  directors 
were  not  elected  prior  to  the  election  of  a  president.  The 
objection  was  oveiTuled,  and  the  assessment  held  valid. 
Currie  v.  Mut.  Assurance  Society,  4  Hen.  <fe  Munf.  Va.  315. 
1809. 

§  2.  The  original  charter  of  .1794  provided  for  assess- 
ments upon  all  members,  without  distinction  between 
town  and  country.  Experience  showing  that  the  town 
losses  were  much  the  greater,  at  a  request  of  a  majority 
of  the  society,  an  act  was  passed  in  1805,  authorizing  a 
division  of  the  town  and  country  risks  into  separate  classes ; 
each  class  to  have  its  own  assessment,  and  bear  its  own 
losses.    Heldy  that  the  act  of  1805  was  valid  and  binding, 


IQ 


no 


AssEsssiEiirrs. 


and  that  an  assessment  against  the  town  class  was  binding 
on  an  original  member,  who  came  within  that  class. 
Currie  v.  Mut.  Assurance  Society,  4  Hen.  &  Munf.  Va.  315. 
1809. 

§  3.  Under  a  Virginia  statute,  requiring,  in  case  of  a 
sale  of  the  property  insured,  the  subscriber  should  give 
notice  of  the  insurance  to  the  purchaser,  and  assign  the 
policy  to  him,  and  that  the  latter  should  be  deemed  a  sub- 
scriber in  the  room  of  the  original,  and  the  property  should 
still  remain  liable  for  quotas ;  Held,  that  the  under^vrite^ 
might  recover  a  quota  due  against  the  purchaser,  though 
the  policy  was  not  assigned,  the  provision  of  the  law  re- 
quinng  an  assignment  being  merely  directory.  Mutual 
Assurance  Co.  v.  Byrd,  1  Va.  Cases,  170.     1810. 

§  4.  Quotas  for  a  deficiency  in  fuuv^s  may  lawfully  be 
assessed  against  those  only,  who  were  insured  at  the  time 
when  the  deficiency  occurred.  Greenhow  v.  Buck,  5  Munf. 
Va.  263.     1816. 

§  5.  The  declaration  for  insurance  is  a  sealed  instru- 
ment, and  the  act  of  limitations  does  not  apply  to  an 
action  for  quotas.  And  a  judgment  for  quotas,  under  a 
Virginia  statute,  may  be  had,  on  motion,  against  a  pur- 
chaser of  the  property  insured,  as  well  as  the  original 
subscriber.  And  the  7^  per  cent,  damages,  to  indemnify 
for  expenses  of  collection,  imposed  by  the  rules  of  the  cor- 
poration, is  not  usury,  nor  in  the  nature  of  a  penalty,  but 
stipulated  damages,  which  may  be  recovered,  with  the 
quotas,  on  motion.  Stratton  v.  Mutual  Assurance  Society, 
6  Munf  Va.  22.     1827. 

§  6.  Declaration  for  insurance  by  S.,  and  afterwards 
there  was  a  re- valuation  and  a  new  declaration  on  same 
buildings  by  W.  &  T.  The  society  filed  the  declarations 
and  moved  for  judgment  against  S.  &  T.  for  quotas  accru- 
ing after  the  re-valuation.  Judgment  rendered  by  default. 
Iieldj  1st,  that  the  declarations  were  part  of  the  record ; 
2d,  that  the  judgment  was  erroneous,  because  S.  was  not 
liable  for  quotas  after  the  re-valuation,  find  because  T.  was 
not  jointly  liable  with  S.,  and  was  jointly  liable  with  W. 
Shipworth  v.  Mutual  Assurance  Society,  10  Leigh,  Va. 
502.     1839. 


ASSESSMENTS. 


Ill 


§  7.  A  condition  in  a  policy  of  a  mutual  insurance 
company,  "  that,  if  assured  shall  neglect,  for  thirty  days 
after  notice  to  pay  an  assessment  on  his  premium  note, 
the  policy  shall  be  void,"  is  valid  and  binding ;  and  a  non- 
compliance with  it  is  a  good  defence  to  an  action  on  the 
policy.  Beadle  v.  Chenango  County  Mut.  Ins.  Co.  3 
Hill,  N.  Y.  161.     1842. 

§  8.  The  insured  executed  his  premium  note  payable 
in  such  portions  and  ai;  such  times  as  the  directors  might, 
agreeably  to  their  act  of  incorporation,  require.  At  the 
great  fire  in  Pittsburgh  che  company  sustained  losses,  ex- 
ceeding in  amount  tho  premium  notes  and  other  resources 
of  the  company,  together  with  the  additional  sum  of  one 
dollar  on  every  one  hundred  dollars  insured,  which  the 
company  was  authorized  to  assess.  Held^  that  the  com- 
pany was  bound  to  call  in  the  whole  amount  of  the  pre- 
mium notes  and  of  the  one  per  cent,  additional  at  once, 
and  to  distribute  the  same  p'o  rata  among  the  losers. 
Rhinehart  v.  Allegany  County  Mut.  Ins.  Co.  1  Penn» 
St.  359.     1845. 

§  9.  In  a  suit  upon  a  premium  note,  given  to  a  mu- 
tual company,  to  recover  an  assessment  thereon,  to  pay  a 
loss  by  fire ;  Held^  that  the  maker,  after  aiding  to  put  the 
corporation  into  action,  and  partaking  of  its  benefits, 
could  not  now  deny  its  legal  existence,  in  order  to  escape 
from  liability  on  his'  premium  note.  Trumbull  County 
Mut.  Fire  Ins.  Co.  v.  Horner,  17  Ohio,  407.     1848. 

^  §  10.  Assessments  need  not  be  made  on  the  premium 
notes  of  a  mutual  company  at  every  loss,  but  should  be 
made  upon  a  rule  approximating  to  it  as  near  as  is  prac- 
ticable and  reasonaole.  New  England  Mut.  F.  Ins.  Co. 
V.  Belknap,  9  Cush.  Mass.  140.     1851. 

§  11.  By  the  provisions  of  the  plaintiffs  charter  it 
was  declared  that  every  member  of  the  company  shall  be 
bound  to  pay  for  losses,  <fec., "  in  proportion  to  the  amount 
of  his  deposit  note,"  and  the  10th  section  provided  that 
the  directors,  having  ascertained  the  loss,  "  shall  settle  and 
determine  the  sums  to  be  paid  by  the  several  members  of 
the  company,  as  their  respective  proportions  of  such  loss. 


112 


ASSESSMENTS. 


and  that  the  sum  to  be  paid*  by  eacl*  iiiember  shall  always 
be  in  proportion  to  the  original  aniount  of  his  deposit  note 
1  or  notes.  Heldy  that  the  directors  having  ascertained 
I  that  the  company  is  lial)le  for  a  loss,  and  tnat  the  com- 
pany have  not  sufficient  funds  to  pay  such  loss,  are  first  to 
ascertain  who  were  members  of  the  company  at'^e  time 
the  loss  occuiTed,  and  having  ascertained  this,  their  assess- 
ment is  to  be  made  upon  each,  in  the  proportion  which 
the  amount  of  his  deposit  note  bears  to  the  aggregate 
amount  of  all  the  deposit  notes.  The  directors  nave  no 
right  to  take  into  consideration  the  length  of  time  any 

Eerson  has  been  a  member,  in  determining  the  amount  of 
is  assessment,  or  whether  he  shall  be  assessed  at  all.  If 
the  directors  have  "  omitted  to  assess  the  deposit  notes  of 
divers  persons,  then  being  members  and  liable  for  their 
proportion  of  the  losses,  thus  increasing  the  amount  of 
the  defendants'  assessment,  or  if  they  have  included  in  the 
assessment  the  amount  of  previous  assessments,  from  the 
payment  of  which  the  parties  assessed  have  been  released, 
the  assessment  is  invalid.  Herkimer  County  Mut.  Ins. 
Co.  V.  Fuller,  14  Barb.  N.  Y.  373.     1852. 

§  12.  In  an  action  to  recover  an  assessment  on  pre- 
mium note,  giv^n  to  a  company  that  had  divided  all  its 
risks  and  notes  into  two  classes,  contrary  to  the  general 
insurance  law  of  1849,  in  N.  Y. ;  Held,  that  assured  had  a 
right  to  claim  that  all  the  premium  notes  held  by  the 
company  should  be  assessed,  before  an  assessment  on  his 
note  could  be  recovered ;  as  he  was  not  limited  to  that 
<;lass  of  risks  in  which  his  policy  had  been  placed. 
Thomas  v.  Achilles,  16  Barb.  N.  Y.  491.     1853. 

/  §  13.  The  by-laws  provided  for  a  I'egular  monthly 
meeting  of  the  president  and  directors  of  the  company. 
Article  22  of  the  By-laws  was  as  follows:  "To  avoid  the 
necessity  of  making  an  assessment  in  case  of  trifling 
losses,  a  majority  of  the  directors  are  authorized  to  bor^ 
row  such  sum  or  sums  of  money  as  may  be  necessary. 
And  in  case  an  assessment  be  needed  for  any  purpose,  the 
directors  shall  have  power  to  order  such  assessment,  at 
any  meeting  called  for  the  purpose."  An  assessment  was 
levied  at  the  regular  monthly  meeting,  which  was  re- 


ASSESSMENTS. 


113 


sisted  because  no  notice  was  given  of  the  purpose  to  levy- 
assessments  at  that  meeting.  Held.,  thai  ^t  was  part  of  the 
ordinary  business  of  the  regular  monthly  meetings  to  order 
assessments  when  required,  and  that  no  notice  was  neces- 
sary. Bay  State  Mut.  Fire  Ins.  Co.  v.  Sawyer,  12  Cush. 
Mass.  64.     1853. 

§  14.  Assessments  may  be  made,  after  expiration  of 
policy,  for  losses  happening  whi^e  the  insurance  con- 
tinued, and  insured  is  not  entitled  to  his  premium  note, 
until  all  the  losses  for  which  he  was  liable  have  been  sat- 
isfied. St.  Louis  Mut.  Fire  <fe  Marine  lis.  Co.  v.  Boeckler, 
19  Mo.  135.     1853. 

§  15.  In  an  action  on  a  premium  note,  to  recover  an 
assessment ;  Held.^  that  in  order  to  maintain  the  action, 
the  plaintiffs  were  bound  to  show  that  le^al  assessments 
had  been  made  by  the  directors,  and  foi  this  purpose,  to 
produce  proper  evidence  of  their  act  of  incorporation  and 
by-laws,  so  that  it  might  appear  that  their  provisions  had 
been  substantially  complied  with,  in  making  the  assess- 
ments. It  was  not  enough  to  show  actual  assessments, 
leaving  the  defendant  to  prove  that  they  were  not  in  ac- 
cordance with  the  act  of  incoi-poration  and  by-laws.  At- 
lantic Mut.  Fire  Ins.  Co.  v.  Fitzpatrick,  2  Gray,  Mass.  279. 
1854. 

§  16.  It  is  not  essential  that  a  loss  by  fire  shall  have 
happened  before  an  assessment  upon  premium  notes  could 
be  lawfully  made.  -  Kelly  v.  Troy  Fire  Ins.  Co.  3  Wis.  254. 
1854. 

§  17.  Where  a  mutual  insurance  company  was  au- 
thorized by  an  amendment  to  its  charter  to  issue  policies 
"for  cash  premiums,"  at  the  election  of  the  applicant, 
which  were  to  be  taken  in  lieu  of  a  deposit  note,  and  the 
fund  arising  therefrom,  together  with  the  deposit  notes, 
were  declared  to  be  the  capital  of  the  company  for  the 
payment  of  losses  and  expenses :  Held.,  1st,  th,at  the  fund 
arising  from  cash  premiums  was  subject  to  the  same  appli- 
cation as  "premium  notes,"  and  could  not  be  diverted  to 
the  payment  of  losses  accruing  before  such  premiums  were 
received ;  and,  2d,  that  an  assessment  for  the  whole  amount 


/ 


114 


ASSESSSrENTS. 


of  losses  accruing  during  the  time  sucli  funds  were  re- 
ceived, made  upon  the  deposit  notes,  without  first  exhaust- 
ing the  cash  funds  as  provided  by  law,  was  illegal  and 
void.  Ohio  Mut,  Ins.  Co.  v.  Marietta  Woolen  Factory,  3 
Ohio  St.  348.     1854.     . 

§  18.  Three  companies,  under  a  statute,  united  to 
form  a  fourth  consolidated  company,  and  the  latter  brought 
suit  for  assessments  on  a  policy  issued  by  one  of  the  orig- 
inal companies.  Held^  that  the  action  could  not  be  main- 
tained, without  showing  that  the  insured,  by  his  vote  in 
favor  of  consolidation,  or  by  some  fact  stronger  than  mere 
silence,  assented  to  the  change.  Hamilton  Mut.  Ins.  Co. 
V.  Hobart,  2  Gray,  Mass.  543.     1854. 

§  10.  A  statute,  amending  the  charter  of  a  mutual 
insurance  company,  provided  for  a  division  of  the  risks, 
thereafter  taken,  into  classes,  when  the  property  insured 
should  amount  to  $50,000,  in  each  class,  and  then  each 
class  should  bear  its  own  losses.  Held^  that  an  assessment, 
based  on  a  classification  assigning  less  than  $50,000  to 
each  class,  was  invalid.  Augusta  Mut.  Fire  Ins.  Co.  v. 
French,  30  Me.  522.     1855. 

§  20.  Members  of  mutual  companies,  under  the  11th 
section  of  the  act  of  1840,  in  N.  Y.,  can  only  be  made  to 
pay  in  proportion  to  the  original  amount  of  their  deposit 
note  or  notes,  and  can  be  made  to  pay  no  more,  in  the 
hands  of  a  receiver,  than  could  have  been  collected  by 
the  directors ;  nor  can  the  liability  of  the  members  be  in- 
creased by  the  insolvency  of  the  company.  Assessments 
must  be  made  separately  upon  all  premium  notes  in  force 
at  time  of  happening  of  each  successive  loss,  unless  two 
or  more  losses  occur  about  the  same  time,  when  one  assess- 
ment will  answer  for  both.  Nor  can  the  receiver  change 
this  rule  because  the  cash  premiums  paid  the  company 
have  been  expended  in  paying  losses,  and  thereby  light- 
ened assessments  on  prior  notes  and  left  subsequent  losses 
under  the  receiver  to  be  f)aid  wholly  by  assessments  on 
notes  then  in  force.  Nor  can  any  discrimination  be  made 
because  some  of  the  notes  were  executed  for  higher  rates 
of  premium  than  were  charged  by  the  company  after- 
wards. Shaughnessy  v.  Rensselaer  Ins.  Co.  21  Barb.  N. 
Y.  605.     1855. 


t 


^r 


ASSESSMENTS. 


115 


§  21.  The  Rochester  Insurance  Company  made  an 
assignment  of  all  its  assets,  consisting  only  of  premium 
notes ;  and  the  assisfnee,  ascertainins:  that  there  was 
$40,000  to  $50,000  losses  due,  made  an  assessment,  in- 
cluding in  such  assessment  $4,500  for  expenses  of  assign- 
ment,  $5,266  for  costs,  interest,  and  expenses,  and  $4,735  ^^ 
for  costs  of  collection.  Held,  that  the  assignee  could  not 
levy  assessments  for  these  expenses,  nor  for  losses.  The 
power  of  levying  assessments  can  be  exercised  only  by 
the  corporation  or  by  a  receiver ;  it  cannot  be  transferred 
to  an  assignee,  llurlburt  v.  Carter,  21  Barb.  N.  Y.  221. 
1855. 

§  22.  An  assignee  of  policy  is  liable  on  his  promise 
to  pay  all  future  assessments  on  the  policy,  though  the 
original  deposit  note  had  been  surrendered  to  surety  of  the  -. 
original  insured,  upon  payment  of  assessments  then  due 
upon  it,  for  losses  occurring  prior  to  assignee's  membership 
in  the  company.  New  Hampshire  Mut.  Ins.  Co.  v.  Hunt, 
lOFost.  KH.  219.     1855. 

§  23.  Assessments  are  not  invalidated  by  delay,  not  \ 
unreasonable,  in  making  them ;  nor  by  small  errors,  if  \ 
made  in  good  faith ;  nor  by  variance,  at  different  times, 
between  cash  premiums  and  deposit  notes,  as  against 
members  suffering  no  damage  thereby.  Wh<>ther  there 
was  sufficient  data  fqr  making  a  correct  assessment,  is  a 
question  for  the  j'ury'upon  the  whole  evidence.  Marble- 
head  Mut.  F.  Ins.  Co.  V.  Underwood,  3  Gray,  Mass.  210. 
1855. 

§  24.  Each  note  is  to  be  assessed  in  the  proportion 
which  it  bears  to  aofgregate  of  notes  subject  to  assessment 
and  collectible.  Bansrs  w  Gray,  2  Kernan,  N.  Y.  477. 
1855.    Reversing  15  Barbour,  N.  Y.  204.     1853. 

§  25.     Assessments  are  vitiated  by  intentional  omis- 
sion  of  some  members  liable  to  assessment.     Marblehead   r*- 
Mut.  Fire  Ins.  Co.  v.  Hay  ward,  3  Gray,  Mass.  208.     1855. 

§  26.  Personal  service  is  sufficient  publication  of  no- 
tice of  assessments.  Jones  v.  Sissou,  6  Gray,  Mass.  288. 
1856. 

§  27.    Assessments,    covering  interest  on  borrowed 


116 


ASSESSMENTS. 


money,  probable  failures  in  collection,  and  10  per  cent, 
for  expenses,  are  valid.  So  a  reasonable  reduction  may  be 
provided  for,  in  case  of  prompt  payment  to  the  treasurer. 
Jones  V.  Sisson,  (J  Gray,  Mass.  288.     1856. 

§  28.  In  an  action  for  assessments  against  two  mem- 
/'  bers  of  a  mutual  company,  for  losses  occuring  before  one 
of  them  became  a  member;  Held^  that  the  assessment 
was  valid  as  against  the  one  who  was  a  member  at  the 
time  the  loss  occurred,  but  void  as  to  the  other,  who  was^ 
not  a  member  at  that  time.  Long  Pond  Mut.  Fii*e  Ins. 
Co.  V.  Houghton,  6  Gray,  Mass.  77.     1856. 

I  20.  Where  a  portion  of  the  members  of  a  mutual 
insuraDtee  company,  denominated  "  first  class  policy  hold- 
ers," were  intentionally  omitted  in  making  an  assessment, 
and  the  assessment  was  laid  only  on  those  having  policies 
coming  within  the  designation  of  "second  class,"  and 
where  the  plaintiffs  did  not  show  that  they  were  legally 
entitled  thus  to  divide  their  policies  into  classes ;  lleld^ 
that  the  whole  assessment  was  thereby  invalidated. 
People's  Equitable  Mut.  Fii-e  Ins.  Co.  v.  Anhur,  7  Gray, 
Mass.  267.     1856. 

§  30.  The  act  of  incorporation  of  the  Genesee  Mu- 
tual Insurance  Company  required  the  directors  t?  settle 
and  determine  "  the  sums  to  be  paid  by  the  several  mcxn- 
bers  thereof,  as  their  respective  proportions  of  any  loss, 
and  to  publish  the  same  in  such  manner  as  they  shall  see 
fit,  or  as  by  their  by-laws  shall  have  been  prescribed." 
Held^  that  the  assessment  was  not  complete  and  consum- 
mated till  it  was  ascertained,  fixed  and  detennined  by 
carrying  out  on  the  extension  book  the  amount  each 
member  was  to  pay ;  and  that  the  notice  should  state  the 
amount  demanded  of  each  member;  and  that  a  notice 
issued  before  the  assessment  was  consummated,  and 
which  only  stated  the  rate  per  cent.,  was  both  premature 
and  defective.  Bangs  v.  Mcintosh,  23  Barb.  N.  Y.  591. 
1857. 

§  31.  In  an  action  upon  two  premium  notes,  the  com- 
plaint contained  an  averment  that  the  company  did  at  vari- 
ous times  make  assessments  on  the  notes,  and  required 
such  payments ;  Ueld^  that  this  was  sufficient  to  show  a 


ASSESSMENTS, 


IIT 


cause  of  action  in  this  respect.  If  the  defendants  required 
more  particular  information,  they  should  have  applied  to 
the  court,  to  have  the  pleadings  amended.  Where  the  act 
of  incorporation  vested  in  the  directors  of  the  company  the 
right  of  deciding  what  amount  or  portion  of  the  note  shall 
be  paid,  and  provided  for  the  payment  at  such  times,  as 
the  directors  shall  deem  necessary,  for  the  lionoi*able  and 
prompt  payment  of  the  losses  and  expenses  of  the  compa- 
ny ;  Held,  that  it  was  not  necessaiy  to  aver  in  the  com- 
plaint that  such  losses  had  been  sustained.     Held,  also, 

that  a  resolution  levying  a per  cent,  assessment  was 

a  nullit} . 

Where  a  witness  proved,  from  his  oAvn  knowledge,  that 
the  books  produced  Avere  the  books  of  the  c  ^mj^any,  and 
contained  the  entries  of  the  proceedings  of  the  board,  made 
by  the  secretary  in  his  presence  ;  Held,  that  the  evidence 
of  the  assessment  on  the  notes  by  the  directors  was  suffi- 
cient,  and  that  it  was  not  necessary  that  the  secretary 
should  be  called  for  this  purpose.  St.  Lawrence  Mut.  Ins. 
Co.  V.  Paige,  1  Hilton,  N.  Y.  430.     1857. 

§  32.  A  j)remium  note,  given  to  a  mutual  insurance 
company,  was  payable,  by  its  terms,  in  such  portion  and 
at  such  time  or  times  as  the  directors  of  the  company 
should  direct.  The  general  insurance  law  of  1853  in  New 
York,  to  which  the  plaintiff  was  subject,  provided  that  the 
directors  should,  after  receiving  notice  of  any  loss  or  dam- 
age by  fire  sustained  by  any  member,  and  ascertaining  the 
same,  settle  and  determine  the  sums  to  be  paid  by  the 
several  members,  tfec,  tfcc,  and  the  sum  to  be  paid  by  each 
member  should  always  be  in  proportion  to  the  original 
amount  of  his  note,  tfec.  In  an  action  upon  such  note  for  ^ 
the  recovery  of  assessments;  //^M_ihat  the  liability  of 
the  maker  was  not  an  absolute  liability  to  pay  the  whole  | 
amount  of  his  premium  note,  l>ut  Avas  conditional,  depend- 
ing upon  the  contingency  of  the  happening  of  losses  to 
Avhich  he  was  liable  to  contribute,  and  it  devolved  upon 
the  plaintiff,  seeking  to  enforce  the  collection  of  the  note, 
in  whole  or  in  part,  to  show  by  proper  averments  and  com- 
petent evidence,  that  the  contingency  had  occurred  upon 
which  the  defendant's  liability  became  absolute.  Thon^as 
V.  Whallon,  31  Barb.  N.  Y.  172.     1857. 


I 


If 


118 


ASSESSMENTS. 


§  33.  When  directors  vote  an  assessment,  this  is  a 
sufficient  requirement  of  payment  on  premium  note. 
Notice  of  assessment  need  not  specify  amount  due  on  each 
note.  Atlantic  Marine  <fe  Fire  Ins.  Co.  v.  Sanders,  36  N. 
H.  252.     1858. 

§  34.  Where  it  was  necessary  for  a  receiver  to  make 
application  to  the  court  for  their  approval  of  an  assessment 
and  no  notice  was  given  to  the  defendant,  maker  of  note ; 
Held^  that  the  proceedings  of  the  receiver  in  making  as- 
sessments were  of  no  greater  force  than  the  same  act  would 
have  possessed,  if  done  by  the  board  of  directors,  and  that 
the  determination  of  the  court  in  approving  the  assessment 
was  not  to  be  regarded  as  a  judicial  decision,  concluding 
defendant  as  to  particulars  of  the  assessment.  Where 
neither  the  notice  nor  the  assessment  specified  the  name  of 
the  party  bound  to  contribute,  nor  the  amounts  of  the 
notes,  but  only  a  notice  of  the  rate  per  cent,  to  be  paid  on 
certain  notes  in  different  classes ;  Held.,  that  this  was  no 
objection  to  recovery,  as  each  party  interested  possessed 
the  means  of  reducing  it  to  a  certainty,  and  was  able  to 
calculate,  with  the  rate  per  cent,  given  and  the  knowledge 
of  the  amount  of  his  note  or  notes,  the  sum  he  would  have 
to  pay.  But,  where  two  rates  of  assessments  were  im- 
posed, a  smaller  rate  on  "  large  notes,"  and  a  larger  rate  on 
"  small  notes,"  and  neither  the  assessment  or  notice  afford- 
ed any  criterion  for  detemiining  what  those  terms  meant, 
nor  was  there  anything  in  the  case  to  show  what  the  dis- 
tinction between  these  classes  was,  or  to  create  an  inference 
that  the  defendant  could  detenuine  to  which  class  his  note 
was  deemed  to  belong ;  HehJ.,  that  the  notice  failed  to  in- 
form the  defendant  what  he  was  required  to  pay,  and 
that,  therefore,  he  was  not  in  default  for  not  paying. 
Bangs  V.  Duckingfield,  18  N.  Y.  502.     1858. 

§  35.  The  forfeiture  of  a  policy  of  insurance  in  a  mu- 
tual company,  in  consequence  of  the  non-payment  of  an  as- 
sessment, does  not  relieve  the  member,  ^vhose  property 
was  insured  under  such  policy,  from  liability  for  the  pay- 
ment of  such  assessment  on  his  premium  note,  when  the 
assessment  had  beon  made  whilst  the  policy  was  in  force. 
Iowa  State  Ins.  Co.  v.  Prosser,  11  Iowa,  115.     18C0.    ' 


♦ 


ASSESS5IENTS. 


119 


§  36.  Where  a  meeting  of  members  of  a  mutual  com- 
pany, called  for  the  purpof<e  of  altering  the  by-laws,  and 
"  for  the  transaction  of  sucli  business  as  may  come  before 
them,"  proceeds  to  elect  additional  directors ;  the  meetinff^ 
exceeds  its  authority,  and  assessments  levied  by  such  di- 
rectors are  void.  People's  Mut.  lii».  Co.  v.  Westcott,  14 
Gray,  Mass.  440.     1860. 

§  37.     All  the  notes  of  a  mutual  insurance  company 
constitute  its  capital  stock ;  and  although  the  notes  of  one 
department  must  be  first  assessed  to  pay  the  losses  of  that  # 
department,  yet,  if  they  are  found  not  sufficient,  and  any-  ( 
thing  remains  in  the  other  department  beyond  paying  the   j 
claims  upon  them,  resort  must  be  had  to  such  remaining   V 
assets  until  the  whole  are  exhausted.     If  the  necessity  ex- 
ists resort  must  be  had  to  the  entire  fund  of  the  company. 
White  V.  Ross,  15  Abb.  Pr.  66.     1860. 

§  38.  Although  by  the  Revised  Statutes  of  Maine,  of 
1841,  a  demf'nd  is  required  before  a  mutual  insurance 
company  can  maintain  an  action  for  an  assessment,  yet,  if 
the  charter  subsequently  enacted,  provides  that  such  action 
may  be  brought  after  notice  in  a  paper,  the  provisions  of 
the  charter  control  the  statute.  York  County  Mut.  Fire 
Ins.  Co.  V.  Knight,  48  Me.  75.     1861. 

§  39.  Where  one  article  of  the  by-laws  of  a  mutual 
fire  insurance  company  provnded,  "  If  any  assessment  re- 
quired by  the  directors,  is  not  paid  within  thirty  days  af- 
ter notice,  the  delinquent's  policy  shall  cease  and  deter- 
mine," etc.,  and  another  by-law  provided,  amongst  other 
things,  "  Any  policy  of  insurance  payable  to  the  mortga- 
gee in  case  of  loss,  sliall  continue  so  payable  notwit'*^  ud- 
m^  any  alienation  of  the  property  of  the        •^'rjir  ade 

subsequentlv  1  •  such  insurance.     And  such  ,hall 

pay  any  and.  all  assessments  on  the  property  d  the 

original  assured  sliall  not  pay  tlie  same  on  xuand ; " 
Ilehl,  that  the  foifeiture  provided  by  the  former  section 
did  not  apply  to  the  case  of  a  mortgagee  to  whom,  by  the 
policy,  the  loss  was  made  payable;  and  that, he  miglit,  in 
case  of  loss,  recover  thereon,  although  the  policy  had 
ceased,  by  neglect  to  pay  an  assessment  within  the  thirty 


■'■'■^.■>.-w'.-jft--*»*(l-.*»'*.-*.'» 


120 


ASSESSME"NTS. 


days,  as  to  the  mortgagor,  whose  interest  was  insured. 
Francis  v.  Butler  Mut.  Fire  Ins.  Co.  7  li.  I.  159.     1862. 

§  40.  An  assessment  made  by  an  insurance  company 
upon  its  premium  notes,  which  includes  the  amount  of  a 
previous  assessment  for  losses  that  have  been  paid,  is  in- 
valid, and  cannot  be  collected.  Cooper  v.  Shaver,  41 
Barb.  N.  Y.  151.     1862. 

§  41.  If  under  the  by-laws  of  a  mutual  insurance 
company,  each  person  insured  is  obliged  to  deposit  his 
written  agreement  to  be  liable  for  an  amount  equal  to  the 
premium,  in  addition  thereto,  to  be  assessed  and  collected 
by  the  directors  in  such  sums  and  at  such  times  as  they 
shall  deem  expedient,  the  same  to  be  denominated  the  ab- 
solute funds  of  the  company,  and  it  is  provided  in  addition 
that  each  member  of  the  company  shall  be  held  to  pay,  in 
case  losses  should  happen  to  consume  the  absolute  fund,  a 
certain  furtlier  sum,  assessments  upon  the  notes  held  as 
absolute  fiinds  must  be  so  made  ais  to  require  payment  of 
an  equal  proportion  of  each  note  held  by  the  company  at 
the  time  the  assessment  is  made ;  and  these  absolute  funds 
are  to  be  exhausted  before  a  further  assessment  can  be 
made  under  the  statute.  Appleton  Mut.  Fire  Ins.  Co.  v. 
Jesser,  5  Allen,  Mass.  446.     1862. 

§  42.  It  is  no  defence  to  an  action  by  a  mutual  insur- 
ance company  to  collect  assessments,  to  show  that  it  met 
and  chose  officers  before  its  charter  went  into  efltect,  if 
subsequently  to  that  time  persons  were  found  with  the 
consent  and  under  the  authority  of  the  designated  corpo- 
rators, and  without  objection  on  the  pail  of  the  Common- 


wealth, actually 


exercismg 


the  corporate   powers,   and 


V" 

\4a 


claiming  and  using  the  franchise.     Appleton  Mut.  Fire 
Ins.  Co.  V.  Jesser,  5  Allen,  Mass.  446.     1862. 

§  43.  An  assessment  made  upon  a  premium  note, 
should  be  made  without  reference  to  a  fonner  assessment 
standing  in  force  against  the  maker  of  the  note,  and  as  to 
which  the  assessing  power  of  the  insurance  company  is 
expended.  If  it  includes  such  former  assessment  it  will 
be  irregular.  Campbell  v.  Adams,  38  Barb.  N.  Y,  132. 
1862. 


^V 


i 


ASSESSMENTS. 


121 


I 


§  44.  Where  the  by-laws  of  a  mutual  company  pro- 
vide for  an  assessment  for  the  payment  of  losses  "  after 
the  earned  premiums  shall  have  been  used  up,"  if  there 
be  earned  premiums  that  are  uncollectible  and  worthless, 
they  may  properly  be  regarded  as  "  used  up."  Maine  Mut. 
Marine  Ins.  Co.  v.  Neal,  50  Me.  301.     1802. 

§  45.  Where  property  insured  is  conveyed,  and  the 
policy  is  assigned  with  the  assent  of  the  directors  of  the 
company,  an  assessment  made  against  the  original  assured, 
and  notice  to  him,  will  not  cause  a  suspension  of  the 
policy,  in  case  of  non-payment.  The  assignee,  after  the 
assent  of  the  directors,  is  the  party  entitled  to  notice. 
Barnes  v.  Union  Mut. .  Fire  Ins.  Co.  45  N.  H.  21. 
1863. 

§  46.  Where  it  appearcl  that  several  years  prior  to 
the  appointment  of  a  receiver  an  insurance  company  had 
no  funds  to  pay  losses ;  and  the  order  of  reference  directed 
the  referee  to  ascertain  the  amount  of  debts,  <fec.,  and  tot 
make  an  assessment  to  pay  such  debts ;  Ileld,  that  it  was 
a  fair  and  legitimate  inference  that  the  cash  premiums 
were  exhausted,  and  that  a  necessity  for  resorting  to  the 
premium  notes  existed.  Cooper  v.  Shaver,  41  Barb.  N. 
Y.  151.     1863. 

§  47.  When  it  appears  to  a  receiver  of  the  assets  of 
a  mutual  insurance  company,  from  the  liabilities  of  the 
company,  and  the  times  at  which  the  liabilities  accrued, 
and  from  an  examination  of  all  the  classes  and  notes  of 
the  company,  that  there  is  no  note  that  is  not  chargeable 
to  its  entire  amount,  for  liabilities  which  justly  attached 
during  the  existence  of  the  policy  accompanying  such  note, 
a  general  assessment  may  be  made  upon  all  the  premium 
notes  of  the  company,  without  regard  to  classes  and  to 
their  full  amount.  Sands  v.  Sanders,  26  N.  Y.  239,  repeated 
by  mistake  in  28  N.  Y.  416.  1863.  Sands  v.  Shoemaker, 
2  Keyes,  268.     1865. 

§  48.  Where  assessments  have  been  made  on  a  pre- 
mium note  and  paid,  after  a  forfeiture  of  the  policy  by  an 
act  of  the  assured,  and  such  forfeiture  is  successfully  set 
up  by  the  company  as  a  defence  to  an  action  on  the  policy, 
the  amount  of  such  assessments  may  be  recovered  back  as 


; 


122 


ASSESSMENTS. 


money  paid  and  received  by  mistake.     Hazard  v.  Franklin 
Mut.  Fire  Ins.  Co.  7  K  I.  429.     1863. 

§  49.  An  assessment  by  a  mutual  insurance  company 
upon  its  members  of  a  greater  amount  than  is  necessary 
to  enable  it  to  meet  existing  just  claims  against  it,  together 
with  a  reasonaT)le  allowance  for  expenses  and  failures  to 
make  collections,  is  invalid ;  and  an  allowance  for  these 
purposes  of  a  sum  more  than  the  whole  amount  of  the  de- 
ficiency in  its  funds  is  unreasonable,  if  no  special  circum- 
stances are  shown  to  justify  the  excess.  People's  Equita- 
ble Mut.  Fire  Ins.  Co.  v.  Babbitt,  7  Allen,  Mass.  235. 
1863. 

§  50.  Where  under  the  charter  and  by-laws  of  a 
mutual  insurance  company,  a  member  is  liable  to  assess- 
ment on  his  premium  note  only  for  losses  and  expenses 
occurring  during  the  term  mentioned  in  his  policy,  to 
enable  the  company  to  recover  it  must  appear  affirmatively 
that  an  assessment  for  losses  or  expenses  occurring  within 
such  period  has  been  duly  made.  Great  Falls  Mut.  Fire 
Ins.  Co.  V.  Harvey,  45  N.  'H.  292.     1864. 

§  51.  Sums  voluntarily  paid  to  a  mutual  insurance 
company  by  its  members,  upon  an  assessment  which  is 
subsequently  adjudged  to  be  illegal,  with  interest  thereon, 
may  be  treated  by  the  company  as  just  claims  against  it, 
and  may  be  included  as  such  in  making  a  new  assessment. 
Matter  of  People's  Mitt.  Equitable  Fire  Ins.  Co.  9  Allen, 
Mass.  319.     1864. 

§  52.  One  who  has  accepted  a  policy  from  a  mutual 
insurance  company  cannot  object  in  an  action  to  recover 
an  assessment  upon  his  premium  note,  that  the  company 
did  not  give  notice  to  the  secretary  of  the  Commonwealth 
of  their  acceptance  of  their  charter.  Traders'  Mut.  Fire 
Ins.  Co.  V.  Stone,  9  Allen,  Mass.  483.,     1864. 

§  53.  A  refusal  to  pay  an  illegal  assessment  for  thirty 
days  after  demand,  will  not  render  void  a  policy  of  insur- 
ance issued  by  a  mutual  insurance  company,  or  defeat  a 
subsequent  assessment  upon  the  same,  although  the  by- 
laws authoiize  the  directors  to  terminate  the  same  in  case 
of  a  refusal  to  pay  assessments,  and  the  directors  when 


r 


ASSESSMENTS. 


123 


f 


making  the  assessments  voted  that  any  policy,  the  holder 
of  which  should  refuse  to  pay  any  assessment  for  thirty 
days  after  a  demand  on  him,  should  be  void.  Matter  of 
People's  Mut.  Equitable  Fire  Ins.  Co.  9  Allen,  Mass.  319. 
1864. 

§  54.  If  in  making  an  assessment  upon  the  members 
of  a  mutual  insurance  company,  after  a  former  assessment 
has  been  adjudged  illegal,  it  is  found  that,  two  years  be- 
fore, a  large  debt  was  due  from  the  company,  and  that 
many  of  the  members  who  paid  the  sums  assessed  upon 
them  by  the  illegal  assessment,  have  become  exempt  from 
a  nev.'  assessment  by  the  limitation  of  time,  so  that,  if  the 
debt  should  be  assessed  upon  policies  which  were  in  exist- 
ence at  the  time  when  the  items  of  which  it  was  composed 
accrued,  and  which  still  continued  liable  to  assessment, 
there  are  not  premium  notes  to  a  sufficient  amount  to  pay 
them  all,  the  whole  amount  of  such  debt  may  be  taken  as 
a  unit,  and  assessed  upon  all  the  policies  which  were  then 
outstanding,  in  proportion  to  the  time  of  their  existence, 
and  the  amount  of  their  premiums. 

In  making  such  assessment  for  just  claims  which  have 
accrued  within  two  years,  the  aggregate  of  the  whole  net 
expenses,  and  of  the  sums  received  in  payment  of  the  il- 
legal assessment,  during  each  year,  may  be  divided  by 
twelve,  to  ascertain  the  average  amount  to  be  raised  for 
each  month  during  that  year ;  to  which  may  be  added  the 
amount  of  losses  in  each  month  when  losses  occurred ;  and 
the  sum  thus  ascertained  may  be  taken  as  the  sum  to  be 
raised  for  each  month,  in  proportion  to  the  amounts  of  the 
premiums  paid  therefor,  which  were  applicable  to  that 
month.  Matter  of  People's  Mut.  Equitable  Fire  Ins.  Co. 
9  Allen,  Mass.  319.     1804. 

§  55.  One  who  becomes  a  mem  her  of  a  mutual  insur> 
ance  company  after  it  has  practically  adopted  the  pro- 
visions of  a  general  statute  authorizing  the  property  in- 
sured to  be  divided  into  classes,  and  acted  thereon  for 
several  years,  cannot  object,  in  an  action  to  recover  an 
assessment  upon  his  deposit  note,  that  such  provisions 
were  not  formally  adopted  at  a  meeting  regularly  called 
for  that  purpose.  Citizens'  Mut.  Fire  Ins.  Co.  v.  Sortwell, 
8  Allen,  Mass.  217.     1864. 


\ 


124 


ASSESSJfENTS. 


§  56.  If  the  by-laws  of  a  mutual  insurance  company 
do  not  ])rovide  that  the  dejiosit  notes  shall  be  deemed  to 
be  absolute  funds  of  the  company,  an  assessment  may  be 
laid  before  the  collection  of  them  has  been  made  or 
ordered.  Fayette  Mut.  Fire  Ins.  Co.  v.  Fuller,  8  Allen, 
Mass.  27.     1804. 

§  57.  If  no  mode  of  calling  meetings  of  the  directors 
of  a  mutual  insurance  company  is  prescribed  in  the  by- 
laws, except  that  the  secretary  shall  notify  all  such  meet- 
ings, and  if  the  by-laws  do  not  require  that  t\^  object  of 
such  meetings  shall  be  stated  in  the  notices,  an  assess- 
ment upon  deposit  notes  may  be  laid  at  a  meeting  notified 
l)y  the  secretary,  by  order  of  the  president,  although  it  is 
not  attended  by  the  president,  and  although  the  object  of 
the  meeting  was  not  stated  in  the  notices.  Fayette  Mut. 
Fire  Ins.  Co.  v.  Fuller,  8  Allen,  Mass.  27.     1804. 

§  58.  Payment  of  an  assessment  upon  the  deposit 
notes  of  a  mutual  insurance  company  cannot  be  resisted  on 
the  ground  of  the  omission  to  assess  certain  notes  liable 
to  assessment,  if  it  appears  that  all  the  notes  which  were 
in  force  during  the  time  in  question  w'ere  assessed  except 
a  very  small  number,  which  had  l)een  adjusted  and  can- 
celled by  officers  of  the  company  before  making  the  assess- 
ment, and  which  were  of  so  small  an  amount  as  not 
materially  to  increase  the  assessment  ujion  the  remainder. 
Fayette  Mut.  Fire  Ins.  Co.  v.  Fuller,  8  Allen,  Mass.  27. 
1864. 

§  59.  An  assessment  upon  the  members  of  a  mutual 
insurance  company  of  more  than  double  the  amount  of  the 
deficiency  in  its  funds  is  unreasonable  and  void,  if  no  spe- 
cial circumstances  are  shown  requiring  so  large  an  assess- 
ment. Traders'  Mut.  Fire  Ins.  Co.  v.  Stone,  0  Allen,  Mass. 
483.     1804. 

§  60.  If  a  mutual  insurance  company  have  issued  pol- 
icies running  for  one  year,  three  years  and  five  years,  re- 
spectively, the  premiums  for  three  years  Ijeing  twice  the 
rate  charged  for  one  year,  and  those  for  five  years  being 
three  times  the  rate  charged  for  one  year,  and,  in  comput- 
ing the  amount  to  be  assessed  for  each  month's  losses,  a 


ASSESSMENTS. 


125 


N 


basis  is  found  by  taking  the  whole  of  the  premium  for 
each  one  year  policy,  one-third  of  that  for  each  three  years' 
policy,  and  one-fifth  of  that  for  each  five  years'  policy ;  and 
the  Coijrt  below  have  found  such  method  to  be  just  and 
equitable,  the  assessment  so  made  will  not  be  held  void  as 
unequal.  Citizens'  Mut.  Fire  Ins.  Co.  v.  Sortwell,  10  Allen, 
Mass.  110.     1865. 

§  61.  If  the  by-laws  of  a  mutual  insurance  company 
do  not  provide  that  the  deposit  notes  shall  be  deemed  to 
be  absolute  funds  of  the  company,  but  speak  of  assess- 
ments thereon,  such  assessments  may  be  laid  and  collected 
in  the  usual  manner.  Citizens'  Mut.  Fire  Ins.  Co.  v.  Sort- 
well,  10  Allen,  Mass.  110.     1865. 

§  62.  If  a  committee  of  the  directors  of  a  mutual  in- 
surance company  have  made  a  report  recommending  an 
assessment  upon  the  deposit  notes,  and  stating  the  amount 
and  all  the  details,  a  vote  of  the  directors  to  accept  and 
adopt  the  report  is  sufficient  to  authorize  the  laying  of  the 
assessment.  Citizens'  Mut.  Fire  Ins.  Co.  v.  Sortwell,  10 
Allen,  Mass.  110.     1865. 

§  63.  When  claims  for  losses  are  allowed  by  an  in- 
surance company  or  its  receiver,  the  receiver  is  bound  to 
pay  them,  provided  there  are  funds  for  that  purpose ;  and 
when  there  are  no  funds,  it  is  the  duty  of  the  company,  or 
its  receiver,  to  collect  enough  for  that  purpose  of  the  note 
makers.  And  the  latter  cannot  defeat  actions  brought 
against  them,  upon  their  notes,  for  the  recovery  of  such 
funds,  on  the  ground  that  the  company,  or  its  receiver, 
might  have  avoided  allowing  or  paying  the  losses  upon 
mere  technical  grounds.  Sands  v.  Hill,  42  Barb.  N.  Y. 
651.     1865. 

^  64.  The  fact  that  an  assessment  has  already  been 
made  upon  a  premium  note  which  still  remains  unenforced, 
will  not  render  a  second  assessment  upon  the  note,  em- 
bracing the  former  one,  and  desia^ned  to  accomplish  the 
same  purpose,  invalid.  Sands  v.  Sweet,  44  Barb.  N.  Y. 
108.     1865. 

§  65.  A  receiver  of  an  insolvent  mutual  insurance 
company  in  assessing  its  premium  notes,  acts  ministerially 


126 


.ASSESSMENTS. 


and  not  judicially.     His  assessment  is  not  final.     Sands  v. 
Sweet,  44  Barb.  *N.  Y.  108.     1865. 

§  66.  In  an  action  by  the  receiver  of  an  insurance 
company  to  recover  the  amount  of  an  assessment  made 
upon  a  premium  note,  the  plaintiff  need  not  prove  all  the 
facts  upon  which  he,  or,  the  company,  allowed  the  losses 
for  which  the  assessment  was  made.  All  that  is  required 
is  to  show  that  sufficient  claims  for  losses  had  been  pre- 
sented to  the  company,  or  to  the  receiver,  which  had  been 
allowed,  to  make  up  the  sum  for  which  the  notes  had  been 
assessed.     Sands  v.  Hill,  42  Barb.  N.  Y.  651.     1865. 

§  67.  After  a  decree  of  the  court,  under  the  statute, 
ratifying  an  assessment  by  a  mutual  insurance  company 
upon  its  members  who  at  the  time  of  the  making  thereof 
were  liable  to  assessment,  one  whose  policy  had  terminated 
within  two  years  prior  to  the  making  of  the  assessment 
cannot  object,  in  an  action  brought  by  the  company  to  re- 
cover the  amount  assessed  upon  him,  that  the  absolute 
funds  of  the  company  had  not  been  exhausted;  that  he 
was  not  concluded  by  the  order  of  the  court  relative  to 
the  assessment ;  or  that,  if  liable  at  all,  it  was  for  less  than 
the  amount  assessed  upon  him.  Hamilton  Mut.  Ins.  Co.  v. 
Parker,  11  Allen,  Mass.  574.     1866. 

§  68.  The  legislature  has  power  to  provide  that  a  de- 
cree of  the  court,  upon  a  hearing  in  equity,  ratifying  an 
assessment  made  l)y  a  mutual  insurance  company,  shall  be 
conclusive  upon  all  its  members,  without  jiroviding  for 
other  than  a  general  notice,  and  without  making  any  spe- 
cial provision  for  a  trial  by  jury.  Hamilton  Mut.  Ins.  Co. 
V.  Parker,  11  Allen,  Mass.  574.     1866. 

§  69.  Under  the  statutes  of  Ii. -liana  governing  mutual 
insurance  companies,  the  pov,'er  to  i.iake  assessments  ijpon 
premium  notes  is  limited  by  thf.  araount  of  losses  sustained 
and  unpaid  at  the  time  of  making  the  assessment ;  and  an 
assessment  made  to  cover  expenses  as  well  as  losses  is  in- 
valid. Sinnissippi  Ins.  Co.  v.  Taft,  26  lud.  246.  1866. 
See  lb,  366  ;  342. 

§  70.  Defect  in  the  publication  of  a  notice  of  assessment, 
required  to  be  given  thirty  days  before  the  day  of  pay- 


ASSESSMENTS. 


12t 


T 


ment,  is  not  aided  by  proof  of  a  personal  demand  of  the 
note  on  the  day  of  bringing  suit.  Sands  v.  Sanders,  20 
N.  Y.  239.  1863.  And  Sands  v.  Shoemaker,  2  Keyes, 
268.     1865. 

§  71.  A  wrongful  stipulation  by  the  secretary  on  the 
back  of  four  other  policies,  that  the  assured  therein  should 
not  be  liable  for  assessments,  which  action  was  repudiated 
by  the  directois,  and  assessments  collected,  is  no  release  of 
the  defendant's  obligation.  Nat.  Mut.  Ins.  Co.  v.  Yeo- 
mans,  8  R.  I.  25.     1864. 

§  72.  The  charter  allowing  a  suit  for  the  "  amount" 
of  the  assessment  if  unpaid  for  thirty'days,  simple  interest 
may  be  also  collected.  But  a  by-law  cannot  alter  this 
rule  of  damages  and  add  a  penalty  of  ten  per  cent.  Nat. 
Mut.  Fire  Ins.  Co.  v  Yeomans,  8  R.  I.  25.     1864. 

§  73.  The  directors  of  a  mutual  company  cannot  orer- 
look  the  manner  ot  assessing  losses  on  its  members  pre- 
scribed by  its  charter  though  they  find  a  mode  of  appor- 
tionment seemingly  more  equitable.  Slater  Mut.  Fire  Ins. 
Co.  V.  Barstow  &  Co.  8  R.  I.  343.     1866. 

§  74.  Although  the  statute  only  authorizes  assessments 
to  pay  lo8S€s^  a  declaration  averring  that  the  assessment 
was  made  to  pay  the  liabilities  of  the  company  for  losses 
and  expenses  is  sufficient  when  the  exhibit,  required  by 
the  statute  before  making  assessments,  is  made  a  part  of 
the  complaint,  and  shows  that  the  assessment  was  made 
only  to  pay  losses  by  fire  and  not  expenses  of  the  com- 
pany.    Bersch  v.  Sinnissippi  Ins.  Co.  28  Ind.  64.     1867. 

§  75.  By  the  statute  of  1853  a  personal  demand  of 
the  amount  assessed  on  a  premium  note  given  to  a  mu- 
tual company,  must  be  made  before  any  right  of  action 
accrues  upon  it,  until  which  time  the  statute  of  limitations 
does  not  begin  to  run.  Interest  from  the  time  the  assess- 
ments became  payable  is  to  be  allowed  in  the  suit  since 
these  do  not  require  a  personal  demand  (distinguishing 
§§  24  and  39  Prnm.  Notes).  Sands  v.  Annesley,  56  Barb. 
598.     1870. 

§  76.     The  majority  of  the  directors  having  voted  to 


.  i    LUILiMIJW 


128 


ASSIGNMENT. 


assess  a  certain  sum  not  more  tlian  $1,800,  to  moat  losses, 
appointed  a  minority  a  committee  to  fix  the  amount,  who 
thereupon  made  it  a  less  sum.  Held,  the  sum  not  having 
been  fixed  by  a  majority  was  illegal.  Monmouth  Mut. 
Fire  Ins.  Co.  v.  Lowell,  59  Me.  504.     1871. 

§  77.  In  a  suit  to  collect  the  assessment  on  a  premium 
note,  to  establish  the  defendant's  liability,  it  is  not  enough 
to  give  proof  of  a  resolution  of  the  dii-ectors  levying  the 
assessment,  without  further  proof  of  the  actual  occurrence 
of  the  losses  and  expenses  which  authorized  the  assess- 
ment being  made.  Pacific  Mutual  Ins.  Co.  v.  Guse,  4^ 
Mo.  329.     1872.       • 


8ee  Classification  of  Risks,  §  3.  Construction,  8.  Dependency  of  Policy 
and  Premium  Notes,  3,  6,  7,  8,  15,  18.  Evidence,  47.  Foreign  Insurance 
Companies,  31.  Illegality  of  Contract,  9.  Lien,  4.  Mutual  Companies  and 
Members  of,  9,  18,  33,  23.  Premium  Notes,  4,  33,  30,  31,  41.  Receiver,  7. 
Return  Premiums,  6.  Revival  and  Suspension  of  Policy,  4.  Stock  Notes 
and  Subscriptions,  3,  10.    Successive  Losses,  2. 


ASSIGNMENT. 

§  1.  Policies  against  loss  by  fire  are  not  in  their  na- 
ture assignable,  nor  can  the  interest  in  them  be  transferred 
from  one  person  to  another,  without  consent  of  the  otfice. 
But  in  case  of  death,  the  policy  and  interest  therein  shall 
continue  to  the  representative.  In  the  present  case  the 
policy  was  assigned  after  the  loss,  but  dated  before,  and 
the- premises  had  been  sold  before  loss,  and  assignee 
brought  bill  for  relief,  which  was  dismissed.  Lynch  v. 
Dalzell,  4  Brown,  Pari,  cases,  431.     1729. 

§  2.  "Where  policy  had  this  endorsement  on  back ; 
If  this  policy  should  be  assigiied,  the  assignment  must 
be  entered  within  tw(?nty-one  days  after  the  making  there- 
of," and  assured  assigned  the  policy  to  plaintiff  one  month 
after  the  fire;  Ildd^  tliat  such  assignment  was  not  within 
the  meaning  of  the  clause,  -which  had  reference  only  to  an 
assignment  before  the  loss  happened.  Sadler's  Co.  v.  Bad- 
cock,  2  Atkvns,  554.     1743. 


ASSIGNMENT. 


129 


§  3.  A  policy  in  this  company  is  virtually  afssigned, 
by  a  subsequent  mortgage  of  the  buildings  insured,  to  the 
mortgagee.  Farmers'  Bank  v.  Mutual  Assurance  Co.  4 
Leigh,  Va.  GO.     1832. 

§  4.  A  party,  to  whom  a  bankrupt  had  assigned  a 
policy,  sent  an  agent  to  the  insurance  office  to  pay  the  pre- 
mium, who,  in  the  course  of  conversation  with  a  clerk  of 
the  office,  told  him  of  the  assignment  of  the  policy.  Held., 
not  sufficient  notice  to  the  insurance  office  of  the  assign- 
ment. Ex  parte  Carbis  in  re  Croggon,  4  Dea.  ct;  Ch.  354. 
1854. 

§  5.  M.  entered  into  an  agreement  to  convey  the 
premises  insured,  which  conveyance  was  executed  after  the 
fire,  and  also  at  the  same  time  agreed,  by  parol,  to  assign 
the  policy,  which  was  never  done.  The  policy  required 
notice  of  the  assignment  of  the  policy,  to  be  given  to  the 
company.  Held^  that  M,  was  entitled  to  recover  for  the 
whole  loss.  Wheeling  Ins.  Co.  v.  Morrison,  11  Leigh,  Va. 
354.     1840. 

§  6,  Where  policy  of  a  mutual  company  provided  that 
"  the  interest  of  the  insured  in  this  policy,  is  not  assign- 
able without  the  consent  of  the  -said  companv  in  writing, 
and,  in  case  of  any  transfer  or  termination  of  the  interest  of 
the  assured,  either  by  sale  or  otherwise,  without  such  con- 
sent, this  policy  shall  thenceforth  be  void  and  of  no  effect," 
and  plaintiff  assigned  ihe  policy,  without  consent  of  the 
company ;  Held,  Ist,  that  the  clause  had  exclusive  reference 
to  the  policy,  and  not  to  a  sale  or  transfer  of  the  property 
insurecl;  and,  2d,  that  an  assignment  of  the  policy,  without 
consent  of  the  company  in  writing,  therefore  avoided  it. 
The  clause  did  not  nullify  the  assignment  merely,  but  the 
policy  also.  Smith  v.  Saratoga  County  Mut.  Fire  Ins.  Co. 
1  Ilfll,  N.  Y.  497.  1841.  Affirmed,  3  Hill,  N.  Y.  508. 
1842. 

§  7.  A  policy  contained  the  following  provisions: 
"  The  interest  of  the  assured  in  this  policy  shall  not  be  as- 
signable without  consent  of  the  com[)any  in  writing ;  and 
in  case  of  any  transfer  or  termination  of  the  interest  of  the 
assured,  either  by  sale  or  otherwise,  without  such  consent, 
9 


!m 


130 


ASSIGNMENT. 


the  policy  shall  be  void."  Held,  that  the  interest  of  the 
assured  last  spoken  of  referred  to  the  interest  in  the  prop- 
erty insured,  and  not  in  the  mere  contract  of  insurance. 
Carpenter  v.  Washington  Ins.  Co.  16  Peters,  U.  S.  495. 
1842. 

§  8.  Where  a  condition  of  a  printed  policy  authorized 
"  a  mortgagee  to  receive  the  assignment  of  a  policy,  on  his 
signing  the  note  for  premium  and  obtaining  the  consent  of 
the  company,"  and  another  condition  "  prohibited  any  as- 
signment of  the  policy  without  the  consent  of  the  com- 
pany, in  writing;"  Iletcl,  that  the  company,  by  issuing  the 
policy  on  the  sole  note  of  the  assured,  and  knowing  that 
the  assignee  was  the  mortgagee,  and  referring  to  applica- 
tion as  forming  a  part  of  the  policy,  and  in  which  assured 
had  written  that  "  he  wished  an  assignment  to  the  mort- 
gagee," did  not  thereby  consent,  in  writing,  to  the  assign- 
ment of  the  policy ;  and  the  only  inference  that  could  be 
drawn  from  such  facts,  was,  that  upon  mortgagee  doing 
what  was  required  of  him,  the  company  would  consent. 
Smith  V.  Saratoga  County  Mut.  Ins.  Co.  3  Hill,  N.  Y.  508. 
1842. 

§  9.  A  general  assignment  by  the  insured  of  all  per- 
sonal property,  to  pay  cre\iitor3,  does  not  render  a  policy 
void,  under  tne  condition,  "  That,  in  case  of  the  assignment 
of  policy,  &c.,  without  the  insurer's  consent,  the  policy 
shall  be  void,"  that  clause  having  exclusive  reference  to 
the  policy,  and  not  to  the  property  insured.  People  v. 
Beigler,  Hill  &  Denio,  N.  Y.  133.     1843. 

§  10.  Where  the  by  laws  required  the  consent  of  the 
president  and  directors  to  an  assignment  of  policies,  and 
the  president  alone  had  been  in  the  habit  of  assenting  to 
assignments,  without  any  objection  on  the  part  of  the  di- 
rectors, it  shows  at  least  a  tacit  or  implied  consent  of  the 
directors  to  the  ^ame,  and  a  ratification  of  the  president's 
act,  if  not  a  previous  authority  to  do  it ;  and  it  will  be  too 
late,  upon  occurrence  of  a  loss  afterwards,  to  say  that  the 
assignment  was  not  made  with  the  assent  of  the  president 
and  directors.  Philips  v.  Merrimack  Mut.  Fire  Ins.  Co. 
10  Cush.  Mass.  350.     1852. 

§  11.    Where  by-law  provided  that  "no  assignment 


ASSIGNMEIST. 


131 


of  a  policy,  in  consequence  of  alienation  by  sale  or  other- 
wise, shall  be  received  or  considered  valid,  unless  a  pre- 
mium note  of  assignee  of  even  date  with  said  assignment 
shall  be  first  left  with  the  secretary  or  an  agent,  and  the 
same  approved  by  the  board  of  directors,"  proof  in  such 
case  that  at  time  of  company's  assent  to  "  an  order  to  pay 
on  policy  to  F.  &  H."  made  by  the  president,  a  new  de- 
posit note  of  payee  had  been  delivered  to  an  agent  to  re- 
ceive and  forward  applications,  make  transfers  of  and  de- 
liver policies,  but  such  agent  had  not  forwarded  note  to 
company  or  notified  the  proper  officers  of  his  having  it, 
will  not  be  sufficient  to  show  such  a  compliance  with  the 
above  stipulations  as  to  render  it  a  valid  assignment.     If 
in  such  case  the  plaintifi«  would  show  that  the  assured  had 
at  the  time  sold  their  property  to  the  assignee,  and  that 
the  assignee  had  duly  given  a  new  deposit  note,  in  order 
to  draw  the  conclusion  that  the  officers  of  the  company 
knew  and  understood  that  this  was  an  assignment  of  the 
contract,  and  assented  to  it,  with  that  understanding,  the 
burden  of  proof  is  upon  them  to  show  that  these  officers 
had  that  knowledjsje.    Fogg  v.  Middlesex  Mutual  Ins.  Co. 
10  Cush.  Mass.  337.     1852. 

§  12.  The  plaintiff  insured  his  property  with  the  de- 
fendants ;  upon  its  destruction  by  fire,  a  dispute  arose  as 
to  the  loss,  and  the  matter  was  referred  to  arbitration. 
After  the  fire,  but  before  the  award,  the  plaintiff  assigned 
the  bond  of  submission,  the  policy  of  insurance,  and  the 
money  due  thereon,  to  one  H.  Ileldj  that  the  assent  of 
the  defendants  to  the  assignment  was  not  necessary ;  and 
that  the  assignment  of  the  submission  bond  did  not,  under 
these  circumstances,  by  vesting  the  interest  in  the  assignee, 
affect  the  legality  of  the  award  made  under  it.  Hughes 
V.  Mutual  Fire  Ins.  Co.  of  New  Castle,  9  Upper  Canada, 
Q.  B.  387.     1851. 

§  13.  Where  the  original  insured  had  sold  the  prop- 
erty to  the  plaintiffs,  and  indorsed  on  the  policy :  "  For 
value  received,  pay  the  within,  in  case  of  loss,  to  F.  &  H.," 
which  indorsement  was  assented  to  by  the  president  of 
company;  JfeldyihsLt prima  facie,  this  was  not  an  assign- 
ment of  the  contract,  but  only  of  a  right  to  the  money  in 


p 


SBSB^SSXS 


fwrniKiMumwiBm 


132 


ASSIGN3IENT. 


i 


case  of  lossi,  and  that  the  plaintiffs,  to  recover,  must  prove 
themselves  assignees  of  the  contract,  "because  they  prove 
an  alienation  of  the  property  and  a  sale  to  themselves 
long  before  the  fire,  so  that  all  insurable  interest  in  the 
original  insured  had  ceased,  and  no  loss  was  sustained  by 
them,  by  the  fire,  ]iayable  to  anybody.  Fogg  v.  Middlesex 
Mut.  Ins.  Co.  10  Cush.  Mass.  337.     1852. 

§  14.  Where  the  charter  of  a  mutual  company  re- 
quired the  consent  and  approval  of  the  directors,  to  assign- 
ments of  policies,  and  the  secretaiy  consented  to  the  assign- 
ment of  a  policy  of  insurance,  and  indorsed  such  consent 
upon  the  policy,  and  made  a  memorandum  of  the  same  on 
the  books  of  the  company ;  Held,  that  a  foimal  vote  of  the 
board  of  directors  was  not  necessary,  and  the  assent  of  the 
secretary  was  sufficient.  Durar  v.  Hudson  Co.  Mut.  Ins. 
Co.  4  Zabr.  K  J.  171.     1853. 

§  15.  An  assignment  of  "  all  the  loss  or  damages  which 
accrued  under  the  policy  prior  to  "  a  specified  day,  passes 
the  whole  interest  in  the  policy  to  the  assignee,  when  it  is 
shown  that  the  loss  had  accrued,  and  the  policy  expired 
before  that  day.  Perry  v.  Merchants'  Ins.  Co.  25  Ala.  355. 
1854. 

§  16.  The  assignee's  right  to  sue  is  not  affected  by  a 
stipulation  in  the  policy  for  its  renewal,  if  it  had  expired 
without  renewal,  before  the  assignment,  and  the  right  of 
renewal  was  gone  with  the  partial  destruction  of  the  prop- 
erty.    Perry  v.  Merchants'  Ins.  Co.  25  Ala.  355.     1854. 


§17.     When  a  policy  of  insurance  is  assigned,  after  a 


the  usual  stipulation  against  assignment.      Perry  v.  Mer- 
chants' Ins.  Co.  25  Ala.  355.     1854. 

§  18.  Where  policy  provided  that  in  case  of  an  as- 
signment of  the  policy,  either  in  whole  or  in  part,  prior  or 
subsequent  to  the  loss,  without  consent  of  the  company, 
their  liability  should  thenceforth  cease ;  Held,  that  assured 
might  assign  the  policy,  after  a  loss,  without  such  cop-"—'., 
notwithstanding  the  prohibition.  Goit  v.  National  J:'ro- 
tection  Ins.  Co.  25  Barb.  N.  Y.  189.     1855. 


ASSIGNMENT. 


133 


§  19.  Where  policy  prohibited  an  "assignment  of 
the  policy,  transfer  or  termination  of  interest,  or  of  any 
claim  under  the  policy,  either  before  or  after  a  loss,"  under 
penalty  of  o^feiture ;  Held,  that  a  transfer  of  his  interest 
in  the  policy  by  one  of  the  parties  assured,  by  means  of  a 
general  assignment,  without  the  consent  of  the  insurers, 
which  was  made  after  loss,  avoided  the  policy.  Dey  v. 
Poughkeepsie  Mut.  Ins.  Co.  23  Barb.  N.  Y.  C23.     1857. 

§  20.  An  averment  Ijeing  made  in  the  complaint  that 
the  policy  Avas  "  duly  assigned ;"  Held,  that  these  words 
indicate  that  it  was  by  a  sealed  instrument ;  and  a  consid- 
eration is  inferred.  Fowler  v.  New  York  Indemnity  Ins. 
Co.  23  Barb.  N.  Y.  143.     1857. 

§  21.  A  policy,  "  made  payable  in  case  of  loss  to"  a 
third  person,  is  as  effectual  for  the  protection  of  payee's  in- 
terest, as  if  the  policy  had  been  assigned  to  payee  with 
the  company's  consent,  "  as  collateral  security."  There  is 
no  difference  between  them,  Grosvenor  v.  Atlantic  Fire 
Ins.  Co.  5  Duer,  N.  Y.  517.  1850.  Affirmed  on  this  point, 
17  K  Y.  301.     1858. 

§  22.  The  assignment  of  a  policy  of  insurance  after  a 
loss,  does  not  violate  the  condition,  "prohibiting  an  as- 
signment of  the  interest  of  the  assured  in  the  policy,"  such 
clause  referring  only  to  an  assignment  of  the  policy  during 
the  pendency  of  the  rislvs  and  accompanying  the  transfer 
of  an  interest  in  the  property  insured,  and  not  to  an  as- 
signment of  the  delit,  arising  from  a  loss.  Mellen  v.  Ham- 
ilton Fire  Ins.  Co.  5  Duer,  N.  Y.  101.  1855.  Affirmed, 
17  N.  Y.  000.  1858.  Brichta  v.  New  York  Lafayette 
Ins.  Co.  2  Hall,  N.  Y.  372.     1820 

§  23.  Tlie  clause  in  a  policy,  which  })rohiV)its  an  assign- 
ment of  the  policy,  without  the  consent  of  the  insurance 
company  in  writing,  does  not  api)ly  to  a  deposit  of  the 
policy  by  way  of  pledge,  with  a  creditor  of  assured.  Ellis 
V.  Kreutginger,  27  Mo.  311.     1858. 

§  24.  Policy  provided  that  "  Policies  of  insurance 
subscribed  by  this  company  shall  not  be  assignable  before 
or  after  a  loss,  without  the  consent  of  the  company,  ex- 
pressed by  an  indorsement  thereon.     In  case  of  assignment 


134 


ASSIGNMENT. 


Avithout  such  consent,  whether  of  the  whole  policy  or  of 
any  interest  in  it,  the  liability  of  such  company  in  virtue 
of  such  policy  shall  thenceforth  cease,",  <fer  After  a  loss 
had  occurred,  the  assured  assigned  all  his  claim,  under  the 
policy,  to  the  plaintiff.  Held^  tliat  the  words,  "  the  liability 
of  the  company  in  virtue  of  such  policj  shall  thenceforth 
cease,"  must  be  construed  to  mean  its  liability  as  an  insurer 
for  losses  to  accme  thereafter,  and  not  for  losses  which 
have  already  acciiicd;  and  consequentlj^,  that  plaintiff 
might  recover.  Courtney  v.  New  York  City  Ins.  Co.  28 
Barb.  N.  Y.  116.     1858. 

§  25.  Policy  was  assigned  as  follows :  "  For  value  re- 
ceived, I  hereby  assign,  transfer,  and  set  over  unto  W.  and 
his  assigns,  all  my  right,  title  and  interest  in  this  policy  of 
assurance  nnd  all  benefits  and  advantages  to  be  derived 
therefr-  ;  ?;  collateral  security  on  a  bond,"  <fec.  The 
charter  -  I  .  company  provided  that  "  if  any  person,  in- 
sured in  this  corporation,  shall  convey  or  assign  the  prop- 
erty iiiinied,  it  t  It'U  be  lawful  for  such  person  to  assign  to 
the  purchase i  th»^  P'^licy  of  insurance  ;  but  the  corporation 
shall  not  be  bound  by  such  policy  after  such  assignment, 
until  the  said  assignment  shall  have  been  recorded  in  the 
books  of  the  corporation,  and  certified  on  said  policy  by 
the  secretary."  Assignee  brought  action  under  the  above 
policy,  simply  averring  in  his  declaration,  "  that  the  policy 
was  assigned  to  him  as  collateral  security  for  a  bond  of 
$422."  Held^  that  the  action  could  not  be  maintained,  as 
the  declaration  did  not  further  aver  a  conveyance  or  as- 
signment of  the  property  to  the  plaintiff,  a  record  of  the 
assignment,  and  its  certificate  on  the  policy,  or  other  cause 
of  liability.  Bayles  v.  Insurance  Co.  3  Dutch.  N.  J.  163. 
1858. 

§  26.  A.  held  a  bond  for  a  deed  of  a  certain  piece  of 
land,  and  borrowed  money  of  B.  to  build  thereon,  and,  to 
secure  B.,  afterwards  took  out  a  j)olicy  on  the  buildings,. 
"Loss  if  any  payable  to  B.,"  the  insurance  company 
being  cognizant,  not  only  of  the  nature  of  the  interest  to 
be  insured,  but  also  of  the  claim  due  to  B.  Some  months 
afterwards,  A.  assigned  all  his  equitable  claim  and  title 
under  the  bond  to  B.,  and,  subsequent  to  such  assignment 


ASSIGNMENT. 


135 


of  the  property,  B.  paid  up  the  balance  clue  on  the  bond, 
and  received  a  deed  to  the  premises  from  the  obligor  of 
the  bond.  The  policy  provided :  "  The  person  for  whose 
interest  the  insurance  is  made  must  be  declared  and  named 
therein,  nor  can  any  policy  or  interest  therein  be  assigned, 
but  by  the  consent  of  the  company,  expressed  by  indorse- 
ment made  thereon."  In  a  suit  in  equity  on  such  policy ; 
Held^  that  the  policy  must  be  regarded  as  having  been,  at 
its  inception,  assigned  to  B.  with  the  consent  of  the  com- 
pany, and  that  the  circumstance  of  the  property  insured 
having  been  subsequently  transferred  to  B.,  the  assignee, 
did  not  come  within  the  al>ove  prohibition  against  assign- 
ment of  the  policy  or  an  interest  therein,  and  did  not  there- 
fore avoid  it.  National  Fire  Ins.  Co.  v.  Crane,  l6  Md.  260. 
1860. 

§  27.  Where  the  policy  by  its  terms  prohibited  an 
assignment  thereof  without  consent  of  the  company ;  Hdd^ 
that  such  condition  referred  only  to  an  assignment  of  the 
policy  before  a  loss,  and  that  an  assignment  of  policy  after 
a  loss  was  equivalent  to  an  assignment  of  the  debt  cre- 
ated and  become  due  by  the  loss,  and  was  not  therefore 
within  the  prohibition.  Carter  v.  Humboldt  Fire  Ins.  Co. 
12  Iowa,  284.     1861. 

§  28.  A  policy  on  a  mechanic's  lien  interest  was  as- 
signed as  collateral  security  with  the  consent  of  the  com- 
pany. Held^  that  the  assignment  of  the  policy  was  valid, 
though  unaccompanied  by  any  transfer  of  the  indebted- 
ness secured  by  the  mechanic's  lien.  Stout  v.  City  Fire 
Ins.  Co.  of  New  Haven,  12  Iowa,  371.     1861. 

§  29.  The  policy  "agreed  to  make  good  unto  the  as- 
sured, his  executors,  administrators,  and  assigns,  all  such 
immediate  loss,"  «fec.  It  also  contained  this  provision: 
"  Policies  of  insurance  sul)scril)ed  l)y  this  company  shall 
not  be  assignable  without  the  consent  of  the  company,  ex- 
pressed by  indorsement  made  thereon.  Iltld^  that  the 
policy  was  assignable  after  loss  without  such  consent. 
Walters  v.  Washington  Ins.  Co.  1  Iowa,  404.     1855. 

§  30.  After  a  right  of  action  for  a  loss  has  accrued, 
no  condition  in  the  policy  can  prevent  a  subsequent  as-, 
signment  of  the  claim.     Ihe  legal  effect  of  the  claim  can- 


^sm 


MIWIIIIIlllW 


136 


ASSIGN3IENT. 


not  be  limited  by  such  a  condition ;  the  right  to  receive 
tlie  insui'ance  becomes  a  chose  in  action,  and  as  such  is  as- 
sio-nable,  and  such  condition,  if  applicable,  is  void,  because 
contrary  to  law:  West  Branch  Ins.  Co.  v.  Helfenstein,  40 
Penn.  St.  289.     1801. 

§  31.  The  only  interest  which  passes  by  an  assign- 
ment of  a  policy  after  a  loss  lias  occurred,  and  after  the 
insurers  have  been  served  with  notice  thereof  and  with 
the  preliminary  proots,  is  the  claim  or  debt  which  the  in- 
sured holds  against  the  insurers  for  the  amount  of  the  loss ; 
and  such  an  assignment  is  not  a  breach  of  a  condition  for- 
bidding a  transfer  of  the  policy,  without  the  consent  of  the 
company.  Carroll  v.  Charter  Oak  Ins.  Cow  38  Barb.  N. 
Y.  402.     1862. 

§  32.  A  provision,  in  a  policy,  prohibiting  a  transfer 
of  the  interest  of  the  assured  after  loss,  is  illegal  and 
void.  Carroll  v.  Charter  Oak  Ins.  Co.  38  Barb.  N.  Y.  402. 
1862. 

§  33.  An  assignment  of  a  policy  by  the  insured  to  a 
mortgagee  is  not  necessary  where  the  company  writes 
across  its  face :  "  Loss,  if  any,  payable  to  C.j  mortgagee," 
Keeler  v.  Niagara  Fire  Ins.  Co.  16  Wis.  523.     1863. 

§  34.  A  condition,  annexed  to  a  policy,  which  pro- 
vides that  jMicies  shall  not  be  assigned  "  either  before  or 
after  a  loss,"  by  its  terms  relates  to  transfers  of  policies 
only,  and  contains  no  words  which  require  or  justify  a 
construction  applying  it  to  and  prohibiting  transfers  of 
claims  for  loss.  Carroll  v.  Charter  Oak  Ins.  Co.  40  Barb. 
N.  Y.  292.     1863. 

§  35.  An  assignment  of  the  assured's  interest  in  the 
policy,  executed  after  a  loss  occurred,  carries,  not  the  pol- 
icy, but  the  claim  or  debt  which  thfe  assignor  has  against 
the  insurers,  for  the  loss ;  and  is  not  a  ])reach  of  a  condition 
in  the  policy  which  pro\'ides  that  the  interest  of  the  assured 
in  tlie  policy  is  not  assignable  unless  by  consent.  Carroll 
V.  Charter  Oak  Ins.  Co.  40  Barb.  N.  Y.  292.     1863. 

§  36.  Where  a  purchaser  agrees  to  insure  for  the 
benefit  of  his  vendor,  and  to  assign  the  policy  for  his  se- 
ciu'ity,  and  he  suljsequenily  procures  the  building  to  be 


ASSIGNMENT. 


137 


insured,  but  does  not  assign  the  policy  to  the  vendor,  the 
agreement  operates  as  an  equitable  assignment  of  the 
money  payable  upon  the  policy,  in  case  of  loss,  but  not 
as  an  assignment  of  the  policy.  Such  a  case  does  not  come 
within  the  terms  of  a  clause  in  the  policy,  declaring  that 
the  interest  of  the  insured  in  the  policy  is  not  assignable, 
unless  with  the  consent  in  writing  of  the  insurers,  and  that 
the  policy  shall  l^ecome  void  if  such  interest  is  transferred 
or  terminated  without  such  consent.  Cromwell  v.  Brook- 
lyn Fire  Ins.  Co.  39  Barb.  N.  Y.  227.     1863. 

§  37.  Where  a  policy,  which  by  its  terms,  if  assigned 
without  the  consent  of  the  insurers,  was  to  he  void,  and 
the  assured  executed  an  assignment,  to  be  delivered  after 
such  consent  had  been  obtained,  but  which  was  not  deliv- 
ered, because  consent  was  withheld ;  Held,  that  such  as- 
signment was  inoperative  to  affect  the  rights  of  the  parties. 
Smith  V.  Monmouth  Mut.  Fire  Ins.  Co.  50  Me.  96.     1863. 

§  38.  A  contract  of  affinnance  of  a  transfer  of  a  policy 
founded  on  misrepresentation  is  voidable,  but  not  void, 
and  if  an  insurance  company,  after  knowledge  of  the  facts, 
recognize  the  existence  of  the  contract,  by  acting  upon  it, 
demanding  and  receiving  payments  of  assessments  under 
it,  they  thereby  waive  all  right  to  avoid  it.  Cumberland 
Valley  Mut.  Protection  Co.  v.  Mitchell,  48  Penn.  St.  374. 
1864. 

§  39.  It  is  not  necessary  that  the  interest  of  persons  in 
the  property  insured  be  stated,  when  application  is  made 
for  the  ratification  of  the  transfer  of  a  policy  of  insurance. 
Cumberlaiid  Valley  Mut.  Protection  Co.  v.  Mitchell,  48 
Penn.  St.  374.     1804. 

§  40.  The  rule  which  requires  an  applicant  for  insur- 
ance to  set  forth  the  natars  of  his  interest  in  the  property 
to  be  insured,  does  not  extend  to  assignments  of  policies 
while  in  force.  Lycoming  Ins.  Co.  v.  Mitchell,  48  Penn.  St. 
368.     1864. 

§  41.  H.  obtained  an  insurance  from  the  defendants 
upon  property  owned  by  him,  the  policy  stating  that  the 
loss,  if  any,  should  be  "payable  to  F.  as  collateral."  H. 
was  indebted  to  F.  at  the  time.    IltlJ,  that  the  agreement 


138 


ASSIGNMENT. 


.*,  i  i 


that  F.  should  receive  the  Tnoney,  m  case  oi  a  loss,  was 
only  collateral  to,  and  dependant  upon,  the  original  under- 
taking, that  after  a  loss  had  occurred,  and  not  before,  the 
money  should  he  paid  over  to  F.,  and  not  an  assignment 
of  the  policy  before  any  loss.  That  the  facts  presenfed 
did  not  show  an  assignment  before  loss,  to  a  party  who 
had  no  interest  in  the  property,  within  the  principle  of  the 
cases,  but  a  case  where  the  relation  of  insurer  and  insured 
existed  between  the  defendant  and  H.,  the  owner  of  the 
property,  until  a  loss  had  taken  place,  when  F.,  as  ap- 
pointee of  the  insured,  stepped  in  and  claimed  under  the 
agreement  that  the  insurer  should  pay  the  money  to  him. 
i>ink  V.  Hampden  Ins.  Co.  45  Barb.  N.  Y.  384.     1865. 

§  42.  In  general,  a  contract  of  insurance  is  a  personal 
contract  with  the  assured,  and  the  policy  does  not  pass,  so 
as  to  continue  the  liability  of  the  company,  to  an  assignee 
or  purchaser  of  the  property  insured,  unless  by  the  consent 
of  the  underwriters,  or  the  properly  authorized  officer  or 
board  of  the  association.  Simeral  v.  Dubuque  Mut.  Fire 
Ins.  Co.  18  Iowa,  319.    1865.    ' 

§  43.  An  assignment  of  a  policy  of  insurance  upon  a 
stock  of  goods  effected  in  the  name  of  the  assignor,  made 
as  collateral  security  for  a  debt  due  from  the  assignor  to 
the  assignee,  with  an  agreement  that  in  case  of  Toss  by 
fire  the  assignee  shall  collect  the  money  and  apply  it  on 
the  debt,  attaches  in  equity,  as  a  lien  upon  the  amount  due 
on  the  policy  to  the  extent  of  the  debt,  as  soon  as  the  loss 
occurs,  as  against  the  assignor  and  all  persons  asserting  a 
claim  thereto  under  him.  It  is  not  necessary  to  the  valid- 
ity of  such  contract,  that  the  assignees  have  any  interest  in 
the  property  insured,  nor  that  the  insurer  consent  to  the 
assignment.  Bibend  v.  Liverpool  <fe  London  Fire  and 
Life  Ins.  Co.  30  Cal.  78.    18G6. 

§  44.  Policy  to  have  no  effect  if  assigned.  The  owner 
had  contracted  in  writing  to  sell  the  premises  in  consider- 
ation of  a  bond  for  the  money,  and  a  mortgage  on  the  prem- 
ises to  be  given  by  the  vendee  within  a  month.  The 
vendee  did  not  perform  the  contract  within  the  month ; 
five  days  after,  the  house  was  burned,  and  afterwards  the 
contract  was  carried  out.    Both  before  and  after  the  exe- 


ASSIGNMENT. 


13^ 


ciition  of  the  contract,  there  was  a  parol  agreement  ta 
assign  the  policy  to  the  vendee.  Held,  the  assured  may 
recover,  1,  because  the  vendee,  if  sued  for  the  purchase 
money,  could  have  had  an  abatement  for  the  loss  of 
tlie  house  by  setting  up  the  agreement  to  assign  the 
policy.  2,  Because  the  plaintiff  retained  an  insurable 
interest  by  the  stipulation  fpr  a  mortgage.  Fire  &,  Mar. 
Ins.  Co.  of  Wheeling  v.  Morrison,  11  Leigh,  Va.  354.. 
1840. 

§  45.  A  partner  took  a  stock  of  goods  for  a  firm  debt^ 
and  being  uncertain  of  his  absent  partner's  approval 
thereof,  put  them  in  a  different  store  and  had  them  insured 
in  his  own  name.  The  policy  required  disclosure  if  the 
interest  of  the  as..ared  was  not  absolute.  He  then  sold 
the  whole  to  one  Myers,  and  assigned  the  policy  to  him 
with  the  company's  consent.  Held,  this  was  in  effect  a 
new  insurance  to  Myers,  and  as  he  acquired  an  absolute 
title,  the  policy  was  good  as  to  him,  being  recognized  as 
the  assured  party,  whether  it  was  good  or  not  before  the 
sale  to  him.  City  Fire  Ins.  Co.  of  Hartford  v.  Mark,  45 
111.  482.     1867. 

§  46.  Clause  of  forfeiture  for  assignment  of  the 
policy.  One  partner  of  the  insured  firm  conveyed  all  hia 
interest  in  the  firm  to  a  third  person,  in  language  broad 
enough  to  include  the  policy,  but  there  being  no  assign- 
ment nor  delivery  of  the  policy,  and  another  instrument 
by  the  vendee  showing  the  policy  was  not  to  be  trans- 
ferred ;  Held,  the  intent  being  otherwise,  the  policy  did 
not  pass.   Kitts  v.  Massasoit  Ins.  Co.  56  Barb.  177.    1867.- 

§  47.  Policy  to  be  void  upon  assignment  without  the 
company's  consent  indorsed.  Blank  forms  of  consent  to 
the  assignments  were  on  the  back,  with  the  word  "secre- 
tary "  added  to  the  place  for  the  signature.  The  assured 
assigned  the  policy,  and  the  consent  was  filled  up,  the 
word  "  secretary  "  erased  and  signed  by  B.  "■  agent."  The 
company  had  not  been  notified  of  the  assignment.  No 
authority  had  been  given  to  the  agent  to  consent  thereto. 
The  agent's  book  in  which  transactions  for  the  company 
were  kept,  but  which  the  company  had  never  seen  nor 
had  any  knowledge  of  its  contents,  was  held  inadmissible 


I 


mm 


140 


ASSIGNMENT. 


to  extend  bis  powers ;  the  agent's  authority  being  to 
forward  applications  for  insurance,  also  to  give  a  prelimin- 
ary certificate  of  insurance  for  ten  days  after  the  applica- 
tion was  sent.  Meld/the  agent  had  no  authority  to  con- 
sent to  assignments,  and  ha<l  not  been  held  out  as  having 
such  authority.  Stringhain  v.  St.  Nicholas  Ins.  Co.  3 
Keyes,  280.     1867. 

§  48.  Semble. — ^That  after,  the  assured  has  assign 
the  policy,  with  the  company's  assent,  to  a  third  person, 
having  no  interest  in  the  insured  premises,  an  agreement 
between  the  company  and  the  assured,  annulling  the 
policy  and  crediting  the  unearned  premium  for  a  substi- 
tuted policy  on  other  goods,  is  a  defence  to  a  suit  on  be- 
half of  such  third  person.  Miall  <fc  Co.  v.  Western  Ins. 
Co.  16  U.  C,  C.  P.  270.     1868. 

§  49.  An  assignment  made,  it  being  contemplated 
to  obtain  the  company's  consent,  or  not  to  be  effectual 
until  such  consent  is  obtained,  is  no  breach  of  the  credit- 
ors against  assignment  without  consent ;  and  reforming 
the  assignment  with  the  assent  of  all  the  parties,  remove 
all  objections  as  to  original  al^sence  of  consent.  Man] 
V.  Ins.  Co.  of  N.  America,  1  Lansing,  20.     1869. 

§  50.  Semhle. — A  policy  to  assured,  his  executors, 
administrators  and  assigns,  may  be  assigned  to  the  assignee 
of  the  property,  but  the  insurer's  assent  is  required 
whether  so  stipulated  or  not.  Quaere. — Whether  the  in- 
surer can  forbid  an  assignment  after  loss.  But  Jield,  a 
policy,  assigned  before  loss  without  an  assignment  of  the 
property,  being  then  a  personal  contract,  does  not  require 
the  insurer's  assent;  in  this  case,  it  is  subject  to  all  equi- 
table rights  between  the  insured  and  insurer — it  is  the 
equitable  assignment  of  a  contingent  right  which  on  a  loss 
becomes  vested.  Bergson  v.  Builders'  Ins.  Co.  38  Cal. 
541.     1869. 

§  51.  A  condition  against  assigning  the  policy,  or  any 
interest  in  it,  is  not  bi-oken  by  a  verbal  understanding 
that  the  assured  should  hold  the  policy  for  the  benefit  of 
the  party  with  whom  he  had  made  a  contract  of  sale,  any 
more  than  a  mortgagor's  agieeiueut  to  keep  insured  for  the 


ASSIGNJIENT. 


141 


iDenefit  of  a  mortgagee  is  an  assiornmen  b,  for  such  assignment 
is  only  a  security,  an  insurable  interest  and  a  liability  for 
the  debt  still  remaining  in  the  insured.  Washington  Fire 
Ins.  Co.  «fe  Atlantic  Ins.  Co.  v.  Kelly,  32  Md.  421.     1870. 

§  .')3.  A  sale  of  the  property  and  delivery  of  the 
policy  is  a  valid  assignment  on  a  sufficient  consideration. 
Fierce  v.  Nashua  Firglns.  Co.  r>0  N.  II.  297.     1870. 

§  53.  A  policy  to  assured,  his  heirs  or  assigns,  was  to 
be  void  for  sale  of  the  proj^erty,  "provided,  however,  that 
the  grantee  having  the  policy  assigned,  may  have  the 
same  ratified  to  him  \:\'<a\  application  to  the  directors  and 
with  their  consent,  within  thirty  days  after  such  aliena- 
tion." Held,  the  policy  is  not  void  until  a  refusal  of  con- 
sent, and  the  directors  are  not  justified  in  refusing  without 
evidence  of  unsuitableness  of  the  assignee,  or  other  just 
cause,  and  the  grantee  liaving  complied  with  the  terras 
in  making  his  application,  and  the  premises  being  de- 
stroyed before  the  application  reached  the  company,  which 
thereupon  refused  ratification.  The  policy  is  still  in  force 
in  favor  of  the  grantee.  Boyntou  v.  Farmers'  Mut.  Fire 
Ins.  Co.  43  Vt.  256.     1870. 

§  r)4.  The  clause  of  avoidance  for  assignment  without 
consent  does  not  apply  to  a  transfer  by  the  register  in 
bankruptcy  to  the  assignee  in  bankruptcy.  Starkweather 
V.  Cleveland  Ins.  Co.  2  Abbott  U.  S.  07.     1870. 

§  55.  A  condition  against  assigning  the  policy  or  any 
interest  in  it  without  the  company's  consent  plainly  for- 
bids any  assignment  of  the  policy,  whether  accompanied 
by  the  transfer  of  an  interest  in  the  pi'emises  or  not,  and 
is  therefore  broken  by  an  assignment  without  consent  as 
collateral  security  for  money  loaned  (which  debt  was 
changed  afterwards  into  a  judgment  lien  and  paid  off  after 
the  fire).  For  if  the  debt  thus  secured  is  a  lien  on  the 
premises,  a  loss  by  fire  might  increase  the  value  of  the 
security,  as  when  other  liens  precede ;  while,  if  the  debt 
is  not  a  lien,  the  collateral  security  is  valuable  only  in 
case  of  loss ;  both  of  which  positions  are  hostile  to  the 
insurer.  Ferree  v.  Oxford  Fire  <fe  Life  Ins.  Co.  67  Pa.  St. 
373.     1871. 


142 


BONDS  OF  AGENTS. 


§  56.  Assured  with  the  indorsement  of  the  company's 
Authorized  agent,  made  the  policy  "  payable  in  case  of  loss 
to  N.  (the  plaintiff),  to  the  extent  of  his  claim."  Held,io 
be  the  same  as  an  original  insurance  to  N.,  who  might 
sue  in  his  own  name  without  averring  or  proving  an 
assignment  to  himself  assented  to  by  defendant.  Al- 
though the  plaintiff's  claim  is  for  more  than  the  amount 
of  the  policy,  and  there  was  a  provi^n  that  it  should  not 
be  assigned  without  the  company's  consent  indorsed. 
The  original  assured,  and  not  N.,  is  the  proper  person  to 
make  the  proofs  of  loss.  Guernsey  v.  Am.  Ins.  Co.  17 
Minn.  104.     1871. 

See  Agent,  §  41, 84.  Alienation,  1 2, 28,  30,  34,  42, 45, 83.  Arbitration  and 
Appraisement,  8.  Assessments,  3.  By  Laws  and  Conditions,  8.  Construc- 
tion, 8.  Garnishment,  or  Trustee  Process,  7.  Insurable  Interest,  38.  Inter- 
est in  Policy,  32,  56.  Parol  Evidence,  35.  Premium  Notes,  15.  Responsi- 
bility of  Assignee  for  Acts  of  Assignor,  1.  Revival  and  Suspension  of  Policy, 
8,  7.    Who  may  Sue,  9,  16,  22. 


BONDS  OF  AGENTS. 

§  1.  An  agent  and  his  surety  in  a  bond  for  faithful 
performance  of  duties,  <fec.,  acknowledged  themselves  "  to 
be  held  and  firmly  bound  unto  the  directors,"  <fec.,  of  the 
company  in  the  sum  of  $1,000,  "  to  be  paid  to  the  said 
directors  their  successors  or  assigns."  An  action  was 
brought  on  the  bond  in  the  corporate  name  of  the  company. 
Heldy  that  the  declaration  oUght  to  have  contained  an 
averment,  that  the  bond  was  made  to  the  plaintiffs  by  the 
name  and  description  of  the  "  directors  of  the  Onondaga 
County  Mutual  Insurance  Company,"  but  that  the  dec- 
laration was  sufficient  after  verdict  or  judgment  by  de- 
fault, without  this  averment,  as  the  board  of  directors 
being  the  known  legal  agents  of  the  corporation,  were  to 
be  regarded  as  its  representatives,  in  all  their  official  acts. 
Bayley  v.  Onondaga  County  Mut.  Ins.  Co.  6  Hill,  N.  Y. 
476.     1844. 

^  2.    The  statute  of  Pennsylvania,  requiring  agents  of 
foreign  insurance  companies  to  publish  certain  statements, 


BONDS   OF  AGENTS. 


143 


is  directory,  and  does  not  invalidate  business  done  by 
such  agents,  nor  invalidate  a  bond  given  by  any  agent  to 
Lis  company  for  faithful  discharge  of  duty. 

It  was  the  agent's  duty  to  publish  such  statement,  and 
his  default  cannot  be  set  up,  as  a  defense  against  a  suit  on 
the  bond,  by  either  him  or  his  sureties.  Washington  Ins. 
Co.  V.  Colton,  26  Conn.  42.    1857. 

§  3.  A  bond  was  executed  by  an  insurance  broker, 
as  the  principal  obligor,  and  two  sureties,  with  a  condition 
that  if  they  should  pay  the  company  all  premiums  to  be- 
come due,  &c.,  the  bond  should  be  void.  The  broker  be- 
came bankrupt,  and  at  the  time  was  indebted  to  the 
company  in  a  considerable  sum  for  premiums,  and  of 
which  they  received  a  dividend  of  six  shillings  in  the 
pound.  The  premiums  were  due  three  years  before  the 
bankruptcy,  and  the  company  did  not  call  on  the  sureties 
until  after  the  bankruptcy.  Jleldj  1st,  that  the  sureties 
were  not  discharged  by  the  laches  of  the  company ;  2d, 
that  the  dividend  received  by  them  was  to  be  deducted 
AS  against  the  sureties,  from  the  penalty  contained  in  the 
bond.  London  Assurance  Co.  v.  Buckle,  4  Moore's  Eep. 
153.    1820. 

§  4.  D.  gave  a  bond  to  the  company  of  which  he  was 
secretary  for  the  faithful  performance  of  his  duties  "  dur- 
ing his  continuance  in  office,  by  virtue  of  his  appoint- 
ment," and  C.  signed  the  bond  as  surety ;  D.  was  contin- 
ued in  office  from  year  to  year  by  re-election,  and  when  he 
went  out  of  office  was  in  arrears  to  the  company  for  money 
received  by  him  and  not  paid  over,  to  the  amount  of 
$990,  all  of  which  accrued,  however,  after  his  first  year  in 
office.  Held,  that  the  bond  was  operative  only  durmg  the 
first  year,  and  did  not  cover  defalcations  which  occurred 
during  the  subsequent  years  D.  held  the  office.  Kingston 
Mut,  Ins.  Co.  V.  Clark,  33  Barb.  N.  Y.  196.     1860. 


1 


} 


BOOKS  OF  ACCOUNT  AND  VOUCHERS. 

§  1.  One  condition  of  the  policy  required  assured  to 
verity  their  loss  by  "  their  books  of  account  and  other 
proper  vouchers."  This  additional  proof  had  been  demand- 
ed by  the  company  after  the  fire,  but  all  of  the  assured's 
"  books  of  account  and  vouchers  "  having  been  destroyed 
by  the  fire,  the  assured  was  unable  to  comply  with  their 
demand.  The  company  then  required  assured  to  dupli- 
cate their  invoices,  and  get  the  pass-books  of  their  jour- 
neymen, in  Avhicli  were  entered  the  boots  and  shoes  and 
other  articles  manufactured  by  the  assured,  and  there  was 
evidence  tending  to  show  that  assured  promised  to  get 
thera,  but  it  was  never  done.  The  jury  were  instructed 
that  if  they  were  satisfied  that  all  the  assured'a  "  books 
of  account  and  vouchers"  were  burnt  up,  they  were  not 
bound  to  procure  such  documents  as  were  called  for  by  the 
company ;  that  such  invoices  and  pass-books  belonged  to 
the  merchants  and  journeymen  with  whom  assured  had 
dealings,  and  w^ere  not  in  assured's  possession  or  control, 
and  were  not  the  "  books  and  other  proper  vouchers  "  re- 
qi;ired  to  be  produced  by  the  conditions  of  the  policy.  In 
a  motion  for  a  new  trial,  this  instruction  to  the  jury  was 
held  to  be  correct.  Mechanics'  Fire  Ins.  Co.  v.  Nicols,  1 
Harrison,  N.  J.  410.  .  1838. 

§  2.  The  fact  of  the  conditions  of  a  policy  of  insurance 
requiring  that  any  claim  for  a  loss  shall  be  sustained,  if 
required,  by  the  books  of  account  and  other  vouchers  of 
the  assured,  requires  no  implied  warranty  on  the  part  of 
the  latter  to  keep  ])ooks  of  account,  and  to  be  ready  to 
exhibit  them  when  called  on.  Wightman  v.  Western 
Marine  &  Fire  Ins.  Co.  8  Rob.  La.  44l>.     1844. 


«> 
c. 


After  a  loss,  the  assured  gave  to  the  secretary  of 
the  company  a  list  of  the  names  from  whom  he  had  pur- 
chased his  goods,  and  subsequently  the  secretary  requested 
assured  to  sign  a  paper  calling  upon  the  purchasers  to 
duplicate  the  bills  he  had  bought  of  them,  but  assured  re- 
fused to  sign  it ;  Held,  that  this  refusal  to  do  so  did  not 
prevent  recovery.  Franklin  Ins.  Co.  v.  Culver,  6  Ind.  1 37. 
1855. 


BOOKS  OF  ACCOUNT  AND  VOUCHERS. 


145 


§  4.  Insurance  was  £1,000  upon  clothes  and  ready- 
made  clothing,  The  10th  condition  of  policy,  among 
other  matters  of  preliminary  proofs,  required  the  produc- 
tion of  "  books  of  account  and  other  proper  vouchers,"  and 
that  until  this  was  done,  the  loss  should  not  be  payable. 
The  company  had  required  certain  invoices,  which  the 
plaintiffs  refused  to  produce,  though  it  was  in  their  power 
to  do  so ;  but  the  jury  being  satisfied  on  other  evidence 
that  the  loss  had  been  actually  sustained,  found  in  favor 
of  the  plaintiff  Held^  that  not  having  complied  with  the 
condition  in  the  policy,  the  plaintiffs  could  not  recover, 
and  a  new  trial  was  granted.  Cinqu  Mars  v.  Equitable 
Ins.  Co.  15  Upper  Canada,  Q.  B.  143.  1856.  See  also  » 
same  case  and  like  decision  in  the  suit  on  another  policy. 
15  Upper  Canada,  Q.  B.  246.     1856. 

§  5.  Where  by  the  terras  of  the  policy  it  was  agreed 
that  the  assured  should  produce,  if  required  by  the 
assurers,  his  books  of  account  and  other  vouchers  in  sup- 
port of  his  claim,  and  permit  extracts  and  copies  to  be 
made ;  and  he  was  required  by  the  insurers  to  produce 
his  bills  of  purchases ;  and  he  told  them  it  was  impossible 
to  do  so;  that  he  had  only  found  a  few  bills;  and  after- 
wards he  found  others,  but  did  not  produce  any  to  the  in- 
surers ;  and  the  insurers  requested  him  to  furnish  further 
statements,  and  the  bills  of  purchases,  or  duplicates  of 
them,  but  under  the  advice  of  the  counsel  he  declined; 
Held^  that  not  having  complied  with  the  agreement  in  the 
policy,  he  could  not  recover.  Jube  v.  Brooklyn  Fire  Ins. 
Co  28  Barb.  N.  Y.  412.     1858. 

§  6.  The  assured's  books  of  account  are  not  evidence 
of  themselves,  as  they  have  been  and  are  considered  in 
some  courts.  They  should  be  regarded  as  entitled  to  no 
further  weight  than  the  proof  of  the  witnesses  who  were 
examined  m  relation  to  their  accuiacy  would  justify. 
New  Mark  v.  London  &  Liverpool  Life  <&  Fire  Ins.  Co.  30 
Mo.  lOa     1800. 

10 


:  If 


i 


i 

i 
I 


BURDEN  OF  PROOF. 

§  1.  The  burden  of  proof  of  misrepresentations  is  on 
the  defendants.  Catlin  v.  Springfield  Fire  Ins.  Co.  1 
Sumn.  C.  C.  U.  S.  434.     1833. 

§  2.  It  is  sufficient  to  show  that  the  loss  was  occa- 
sioned by  a  peril  within  the  policy,  without  negativing 
exceptions  of  loss  from  "  design,  invasion,  insurrection,  &c. 
<fec."  which  are  properly  matters  of  defense.  Catlin  v. 
Springfield  Ins.  Co.  1  Sumn.  434.  1833.  Lounsbury  v. 
Protection  Ins.  Co.  8  Conn.  459.     1831. 

§  3.  If  insurers  rely  upon  the  falsity  of  a  representa- 
tion that  a  cask  of  water  kept  in  the  third  story  of  a 
woolen  manufactory,  as  an  avoidance  of  the  policy,  it  is  a 
matter  of  defense ;  and  the  burden  of  proof  is  on  the  de- 
fendants to  prove  that  a  cask  of  water  was  not  placed  in 
the  third  story.  Jones'  Manufacturing  Co.  v.  Manufac- 
turers' Mut.  Fire  Ins.  Co.  8  Cush.  Mass.  82.     1851. 

§  4.  The  burden  of  proving  a  compliance  with  a 
promissory  wan-anty  is  upon  the  assured,  and  the  burden 
of  proving  a  breach  thereof  is  not  upon  the  insurers. 
Wilson  V.  Hampden  Ins.  Co.  4  R.  I.  159.    1856. 

§  5.  In  an  action  on  a  policy  of  insurance,  it  is  not 
necessary  for  the  plaintiff  to  prove  his  title,  until  it  has 
been  assailed  by  evidence ;  nor  need  he  allege  it,  in  his 
complaint.  Fowler  v.  New  York  Indemnity  Ins.  Co.  23 
Barb.  N.  Y.  143.    1857. 

^  6.  "Where  in  an  action  on  a  policy,  the  defense 
admitted  the  existence  of  a  title  originally  suflicient  to 
sustain  the  contract,  but  alleged  a  subsequent  alienation, 
which,  by  the  condition  of  the  policy,  avoided  it ;  Ilildy 
that  the  defendants,  having  assumed  the  affirmative  of  the 
issue  of  alienation  of  the  property  insured,  were  bound  to 
prove  it.  Orrell  v.  Hampden  Fire  Ins.  Co.  13  Gray,  Mass. 
431.     1859. 

§  7.  In  an  action  on  a  policy  of  insurance,  in  which 
the  defence  relied  upon  is  a  subsequent  insurance  con- 
trary to  the  terms  of  the  first  policy,  the  burden  of  proving 


BURDEN   OF  PROOF. 


147 


that  the  two  policies  covered  the  same  property  is  upon 
the  defendants.  Clark  v.  Hamilton  Mut.  Ins.  Co.  9  Gray, 
Mass.  148.    1857. 

§  8.  Where  an  application  represented  that  one  stove 
was  used  in  the  building  insured,  and  another  stove  was 
subsequently  put  in  and  used  without  notice ;  and  the  by- 
laws of  the  defendant  company  provided  that  "  if  the  risk 
shall  be  increased  by  the  insured  or  others  by  any  change 
of  the  circumstances  disclosed  by  the  application,"  &c. 
"  the  policy  shall  be  void ; "  Held^  incumbent  on  the  de- 
fendant company  to  show  that  the  addition  of  the  second 
stove  increased  the  risk,  if  they  would  avoid  the  insur- 
ance. Newhall  v.  Union  Mut.  Fire  Ins.  Co.  52  Me.  180. 
1863. 

§  9.  In  an  action  upon  a  policy  of  insurance  on  a 
theatre,  which  contains,  in  connection  with  the  description 
of  the  property  insured,  this  clause,  "  This  policy  not  to 
cover  any  loss  or  damage  by  fire  which  may  origmate  in 
the  theatre  proper,"  the  burden  of  proof  is  on  the  plaintiff 
to  show  a  loss  not  originating  in  the  theatre  proper. 
Sohier  v.  Norwich  Fire  Ins.  Co.  11  Allen,  Mass.  336. 
1865. 

§  10.  The  charter  of  an  insurance  company,  which 
was  printed  on  and  made  part  of  the  policy,  provided  that 
the  insurance  should  be  void  if  any  alteration  were  after- 
wards made  in  the  builditg  insured,  or  if  any  other  build- 
ing should  be  erected  or  placed  contiguous  tnereto,  where- 
by it  might  be  exposed  to  greater  risk  or  hazai'd  than  it 
Avas  when  insured,  unless  done  with  the  consent  of  the 
directors.  In  a  suit  upon  the  policy ;  Held^  that  the  bur- 
den  of  proof  was  upon  the  company  to  show  a  violation  of 
the  terms  of  the  policy ;  and  that  it  was  properly  left  to 
the  jury  to  determine  whether  any  contiguous  buildings 
had  been  erected  so  as  to  increase  the  risk  that  had  been 
taken.    Ritter  v.  Sun  Mut.  Ins.  Co.  40  Mo.  40.     1867. 

§  11.  In  a  suit  on  a  policy,  the  company  pleaded 
breach  of  the  condition  requiring  preliminary  proow.  The 
assured  having  shown  that  he  had  furnished  proofs,  has 
made  di  prima  facie  case,  and  the  burden  is  on  d(jfendants 
to  show  their  insufficiency ;  for,  the  assured  having  been 


-I 


148 


BURNING  BY  DESIGN. 


told  that  the  claim  would  be  resisted  for  change  of  occu- 
pancy, might  not  unfairly  conclude  that  this  was  the  real 
point  to  De  contested,  and  that  he  would  not  be  called 
upon  to  prove  the  fact  of  the  certificate  being  sent.  Piatt 
V.  Gore  Dist.  Fire  Ins.  Co.  9  U.  C.  C.  P.  405.     1860. 

§  12.  The  onus  is  on  the  defendants  to  establish  the 
alterations  alleged,  and  that  they  increased  the  risk ;  there- 
fore, the  plaintiff's  evidence  cannot  be  nonsuited,  though 
contradictory  in  this  respect.  Date  v.  Gore  Dist.  Mut. 
Fire  Ins.  Co.  A  U.  C.  C.  P.  502.     1864. 

§  13.  The  burden  of  proof  is  on  the  claimant  to  show 
compliance  with  the  terms  of  insurance,  but  having  alleged 
compliance,  he  will  not  be  put  to  proof  under  sworn  plead- 
ings, unless  particular  breach  is  averred  in  the  answer. 
Healey  v.  Imperial  Fire  Ins.  Co.  5  Nevada,  268.     1869. 

§  14.  The  burden  of  proof  to  show  verbal  misrepre- 
sentations, and  their  materiality,  is  on  the  defendant  alleg- 
ing them.  Gerhauser  v.  North  British  &  Mercantile  Ins. 
Co.  7  Nevada,  174.    1871. 

•  See  Agent,  §  67.  Application,  16.  Assignment,  11.  Certificate,  8.  Con- 
struction, 4.  Contribution,  3.  Duration,  4.  False  Swearing,  7, 18.  Foreign 
Ins.  Cos.  32.  Increase  of  Risk,  7,  14,  31.  Notice  of  Loss,  13.  Preliminary 
Proofs,  83.    Premium  Notes,  16. 


BURNING  BY  DESIGN. 

§  1.  Where  in  an  action  on  a  policy  of  fire  insurance, 
the  defense  was,  that  assured  himself  set  fire  to  the  prem- 
ises, and  the  judge  instructed  the  jury  that  the  proof  in 
support  of  such  defense  must  be  as  strong  ancl  full  as 
would  be  required  to  convict  assured,  if  on  trial  for  arson ; 
IleMy  that  such  instruction  was  correct.  Thurtell  v.  Beau- 
mont, 1  Bing.  339.  1823.  Thurtell  v.  Beaumont,  8  Moore, 
612.     1823. 

§  2.  Where  a  defense  is,  that  assured  himself  set  fire 
to  the  premises,  such  fraudulent  intent  must  be  shown ; 
but  it  may  be  shown  by  presumptions,  as  well  as  by  direct 


I 


BURNING  BY  DESIGN. 


149 


IB 


evidence,  and  when  once  established,  no  recovery  can  be 
had.  Regnier  v.  Louisiana  State  Marine  &  Fire  Ins.  Co. 
12  La.  336.     1838. 

§  3.  To  defeat  a  recovery  on  a  policy  of  insurance 
on  the  ground  that  the  plaintiff  set  fire  to  the  premises, 
it  is  not  necessary  that  the  evidence  should  be  such  as 
would  convict  the  plaintiff  on  a  prosecution  for  arson. 
Wightman  v.  Western  Marine  &  Fire  Ins.  Co.  8  Rob.  La. 
442.     1844. 

§  4.  In  an  action  on  a  policy  of  insurance  effected  on 
account  of  the  plaintiff  by. an  agent,  testimony  to  prove 
that  the  latter,  who  had  a  policy  for  his  own  benefit  on 
goods  in  the  "Same  building,  designedly  set  fire  to  the 
building,  is  inadmissible,  where  it  is  neither  alleged  nor 
proved  that  they  were  in  any  way  privy  to  the  act. 

The  act  can  no  more  affect  the  plaintiffs  than  if  done 
by  a  stranger.  Henderson  v.  Western  Marine  &  Fire  Ins. 
Co.  10  Rob.  La.  164.     1845. 

§  5,  Where  defense  is,  that  assured  himself  set  fire  to 
the  premises,  the  evidence  is  not  required  to  be  as  full  and 
concluHive  as  would  be  necessary  to  support  an  indictment 
for  arson.  Hoffman  v.  Western  Empire  Ins.  Co.  1  La.  An. 
216.     1846. 

§  6.  The  evidence  to  establish  a  burning  by  design, 
must  satisfy  the  jury  beyond  a  reasonable  doubt ;  and  to 
establish  the  burning  by  gross  negligence,  on  the  part  of 
one  to  whom  the  money  is  payable,  there  would  be  stronger 
reason  requiring  full  proof.  Butman  v.  Hobbs,  35  Me. 
227.     1853. 

§  7.  The  company  in  resisting  an  action  on  the  policy 
set  up,  that  the  assured  himself  set  fire  to  the  building. 
It  was  claimed  that  the  company  was  bound,  as  in  a  crim- 
inal case,  to  prove  the  act  charged  beyond  a  reasonable 
doubt ;  but  it  was  held  by  the  court  that  this  rule  did  not 
obtain  in  an  action  of  assumpsit  on  the  policy.  Schmidt 
V.  New  York  Union  Mut.  Fire  Ins.  Co.  1  Gray,  Mass.  529. 
1854. 

§  8.  Where  the  defense  is,  that  assured  himself  set 
fire  to  the  premises,  every  legal  presumption  is  in  favor  of 


il 


160 


BY-LAWS  AND  CONDITIONS. 


(■ 


assured's  innocence;  and  he  should  not  be  pronounced 
guilty,  unless  that  guilt  is  clearly  established  by  evidence, 
excluding  or  overcoming  every  fair  and  reasonable  hy- 
pothesis of  his  innocence.  McConnell  v.  Delaware  Ins.  Co. 
18  111.228.     1856. 

§  9.  In  an  action  on  a  policy  of  fire  insurance ;  Held, 
that  proceedings  could  not  be  stayed,  because  a  true  bill 
had  been  found  by  a  grand  jury,  and  was  then  pending 
against  the  assured  on  a  charge  of  arson,  with  a  view  to 
defraud  the  defendants.  Maguire  v.  Liverpool  «fc  London 
Fire  <fe  Life  Ins.  Co.  7  Lower  Canada,  S.  C.  Quebec,  343. 
1857. 

§  10.  An  action  on  a  policy  of  insurance  is  a  civil 
action,  and  though  the  defense  set  up  be,  that  the  assured 
set  fire  to  the  building,  the  rule  of  evidence  is  the  same  as 
in  other  civil  actions,  and  the  jury  may  find  the  issue  upon 
the  weight  or  preponderance  of  evidence.  Washington 
Union  Ins.  Co.  v.  Wilson,  7  Wis.  169.     1859. 

§  11.  In  a  trial  for  arson,  committed  with  intent  to 
defraud  an  insurance  company,  it  is  not  necessary  for  the 
people  to  prove  that  the  policy  was  valid,  and  that  the  de- 
fendant could  maintain  an  action  thereon  for  loss.  People 
v.  Hughes,  29  Cal.  257.     1865. 

See  Evidence,  §  3.    Negligence,  2. 


r, 


BY-LAWS  AND   CONDITIONS. 

§  1.  Conditions  are  to  be  construed  strictly  against 
those  for  whose  benefit  they  are  reserved,  when  they  im- 
pose burdens  on  other  parties.  Catlin  v.  Springfield  Fii-e 
Ins.  Co.  1  Sumner  C.  C.  U.  S.  434.     1833. 

§  2.  Where  policy  was  made  out  on  a  half  sheet,  and 
another  half  sheet  attached,  headed  "  Conditions  of  Insur- 
ance," but  no  reference  in  body  of  policy  to  such  condi- 
tions, nor  any  express  terms  makiug  such  conditions  a 
part  of  the  policy,  and  among  the  conditions  was  one 
"  prohibiting  an  increase  of  risk  by  means  within  control 


BY-LA W8  AND  CONDITIONS. 


151 


of  assured,  under  penalty  of  forfeiture  of  the  policy ; " 
Held,  that  such  conditions  were  pi'ima  facie  a  part  of  the 
policy,  and  that  the  erection  of  a  frame  addition,  therefore, 
to  the  building  insured,  putting  in  it  a  fireplace  and  stove, 
being  an  admitted  increase  of  risk,  avoided  the  policy. 
Koberts  v.  Chenango  County  Mut.  Ins.  Co.  3  Hill,  N.  Y. 
501.     1842. 

§  3.  In  a  policy  of  insurance  on  "  paper  mill,  $750  ; 
on  machinery,  $1,000,  and  on  stock,  $750,"  this  clause 
followed  the  description :  "  Reference  being  had  to  appli- 
cation of  said  Trench  for  a  more  particular  description 
and  the  conditions  annexed,  as  forming  a  part  of  this 
policy ;  Held,  that  the  conditions  thus  referred  to  were 
made  a  part  of  the  contract,  but  otherwise  with  the  ap- 
plication, that  being  referred  to  for  the  mere  purpose  of 
describing  and  identifying  the  property,  and  not  to  incor- 
porate its  statements  into  the  policy  as  part  of  the  con- 
tract. Trench  v.  Chenango  County  Mut.  Ins.  Co.  7  Hill, 
N.Y.  122.     1845. 

§  4.  Application  and  conditions  being  referred  to  in 
same  manner  as  above  (7  Hill,  122,  see  §  3);  Held,  that 
both  application  and  conditions  were  made  part  of  the  con- 
tract and  incorporated  in  it.  Jennings  v.  Chenango  Coun- 
ty Mut.  Ins.  Co.  2  Denio,  N.  Y.  75.     1846. 

§  5.  A  paper  annexed  to  a  policy  and  delivered  with 
it,  purporting  to  be  "  conditions  of  insurance,"  is  prima 
facie  a  part  of  the  policy,  whether  referred  to  in  the  body 
of  the  policy,  by  express  words,  or  not.  Roberts  v.  Che- 
nango County  Mut.  Ins.  Co.  3  Hill,  N.  Y.  501.  1842. 
Murdock  v.  Chenango  County  Mut.  Ins.  Co.  2  Comst.  N. 
Y.  210.  1849.  Sexton  V.  Montgomery  Co.  Mut.  Ins.  Co. 
9  Barb.  N.  Y.  191.     1848. 

§  6.  Where  the  by-laws  annexed  to  the  policy  were 
not  referred  to  in  body  of  policy,  nor  made  a  part  thereof 
in  express  terms :  Held,  that  they  formed  no  part  of  the 
contract  and  insured  was  not  bound  by  them.  Kingsley 
V.  New  England  Mut.  Fire  Ins.  Co.  8  Cush.  I^ass.  393. 
1851. 

§  7.    A  mutual  company  has  no  right,  without  consent 


152 


BY-LA W8  AND  CONDITIONS. 


i 


of  the  corporator,  to  impose  any  new  condition  affecting 
the  contract  to  his  injury ;  as  by  a  by-law  passed  after 
making  the  contract.  New  England  Mat.  Fire  Ins.  Oo.  v. 
Butler,  34  Me.  451.     1852. 

§  8.  At  common  law  a  policy  is  not  assignable  so  as 
to  give  the  assignee  a  right  of  action  in  his  own  name, 
though  the  policy  be  by  its  terms  to  assured  and  his 
assigns.  Where  charter  provides  that  an  alienee  may  have 
the  policy  assigned  to  him  with  consent  of  the  directors, 
such  alienee  may  sue  in  his  own  name ;  but  a  mortgagee 
is  not  an  alienee  within  such  provision.  A  by-law,  how- 
ever, conferring  the  privileges  of  an  alienee  on  a  mortgagee, 
is  valid,  and  gives  the  latter  the  right  to  sue  in  his  own 
name.  And  when  the  assignee  thus  acquires  the  right  to 
sue,  he  alone  can  sue,  and  no  action  can  be  sustained  in 
the  name  of  the  assignor.  Rollins  v.  Columbian  Mut.  Fire 
Ins.  Co.  5  Fost.  N.  H.  200.     1852. 

§  9.  A  by-law  requiring  suit  to  be  brought  in  a  par- 
ticular court,  is  void.  Nute  v.  Hamilton  Mut.  Ins.  Co.  6 
Gray,  Mass.  174.     1856. 

§  10.  A  by-law  requiring  suit  to  be  brought  in  a  par-, 
ticular  court  within  a  fixed  time,  is  good  as  to  time,  and 
void  as  to  the  rest.  Amesbury  v.  Bowditch  Mut.  Fire  Ins. 
Co.  6  Gray,  Mass.  596.^   1856. 

§  11.  An  article  of  the  by-laws  of  the  company,  an- 
nexed and  referred  to  in  the  policy,  provided  that  if  the 
risk  on  any  property  insured  by  said  company  shall  bo  in- 
creased by  the  insured,  or  "  others,"  by  any  change  of  cir- 
cumstances disclosed  in  the  application,  the  policy  shall  be 
void,  unless,"  &c.  An  alteration,  increasing  the  risk,  was 
made  by  "  others ;"  Held,  that  the  condition  was  part  of 
the  policy,  and  was  a  valid  condition.  Whether  the  change 
increased  the  risk,  was  a  question  for  the  jury.  Shepard  v. 
Union  Mut.  Fire  Ins.  Co.  38  N.  H.  232.     1859. 

§  12.  An  insurer  may  prescribe  any  conditions  to  his 
undertaking  that  he  pleases,  and  if  he  makes  it  a  condition 
that  a  constant  watch  shall  be  kept  on  the  premises,  other- 
wise the  policy  shall  be  void,  if  the  assured  fails  to  keep 
a  watch,  the  policy  ceases,  and  no  question  can  be  made 


BYLAWS  AND  CONDITIONS. 


15a 


whether  compliance  affected  the  risk  in  any  way;  but 
when  such  condition  is  qualified  by  a  limitation  as  to  its 
materiality  to  the  risk,  it  opens  that  question  in  each  par- 
ticular case.  Parker  v.  Bridgeport  Ins.  Co.  10  Gray,  Mass. 
302.     1858. 

§  13.  An  omission  to  make  the  formal  preliminary 
proof  of  loss,  under  a  policy  of  insurance,  in  compliance 
with  the  requirement  of  the  by-laws,  may  be  waived  by 
the  officers  of  a  mutual  insurance  company,  although  the 
by-laws  also  provide  that  they  "may  be  altered  at  any 
annual  meeting,  or  at  any  legal  meeting  of  the  company 
called  for  that  purpose."  Thurston  v.  Citizens'  Mut.  Fire 
Ins.  Co.  3  Allen,  Mass.  602.     1862. 

§  14.  Where  a  policy  of  insurance  provides  that 
"  goods  held  in  trust,  or  on  commission,  are  to  be  declared 
as  such,  otherwise  the  policy  will  not  extend  to  cover 
such  property,"  and  it  appears  that  the  insured  have  ob- 
tained their  insurance,  without  making  any  specific  state- 
ment of  the  nature  of  their  interest  in  the  goods  de- 
stroyed ;  Held^  that  the  insurer  had  a  right  to  limit  the 
extent  of  the  risk  by  such  condition ;  and  that  a  knowl- 
edge thereof,  by  the  insured,  must  be  presumed  from 
their  acceptance  of  the  policy,  and  that  such  condition 
had  the  effect  of  limiting  the  risk  to  the  goods  actually 
belonging  to  the  insured.  Baltimore  Fire  Ins.  Co.  v. 
Loney,  20  Md.  20.     1862. 

§  15.  By  one  of  the  conditions  of  a  policy  of  insur- 
ance issued  to  a  mortgagee,  the  assured  was  required,  in 
the  event  of  a  loss,  to  assign  to  the  company  the  mortgage 
upon  the  premises  insured,  together  with  the  debt  secured 
thereby,  or  so  much  thereof  as  would  be  sufficient  to  pay 
the  loss,  and  a  refusal  to  execute  such  assignment,  should 
operate  *to  discharge  the  company  from  all  liability  under 
the  contract ;  Ileld^  that  an  assignment  of  so  much  of  the 
mortgage  debt  as  would  cover  the  amount  of  the  insur- 
ance was  a  sufficient  compliance  with  such  condition.  The 
assured  cannot  be  required  to  assign  the  entire  debt,  when 
it  exceeds  the  amount  insured.  Nor  is  it  an  unreasonable 
condition  of  such  assignment,  that  the  insurers  shall  col- 


!    ^1 


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^mmmm 


WHIBiriM 


154 


BY-7AWS  AND  CONDITIONS. 


lect  such  debt  at  their  own  cost.    New  England  Fire  & 
Marine  Ins.  Co.  32  111.  221.     1863. 

§  16.  Where  a  policy  of  insurance  contains  certain 
provisions  in  case  of  loss  under  it,  as  to  notice  to  the  com- 
pany, proof  of  loss,  «fec.,  by  the  assured,  and  that  any  frdud, 
or  attempt  at  fraud,  or  false  swearing  on  the  part  of  the  as- 
sured, shall  cause  a  forfeiture  of  all  claim  under  it ;  they 
must  be  substantially  complied  with  before  the  claim  be- 
comes payable,  and  unless  waived  by  the  insurer,  are  con- 
ditions precedent  to  the  right  of  the  assured  to  maintain 
an  action.    Gies  v.  Bechtner,  12  Minn.  279.     1867. 

§  17.  A  statute  required  all  conditions  of  insurance  to 
be  stated  in  the  body  of  the  policy.  A  statement  that 
the  policy  is  made  with  reference  to  the  conditions  an- 
nexed, which  are  made  part  of  it,  does  not  incorporate 
these  conditions  into  it.  But  if  the  policy  promises  pay- 
ment after  proofs  are  made  in  accordance  with  annexed 
conditions,  the  proofs  must  be  so  made.  Eastern  R.  R. 
Co.  V.  Relief  Fire  Ins.  Co.  98  Mass.  420.     1868. 

§  18.  In  a  suit  on  a  premium  note,  the  defense  showed 
that  the  company's  rules  permitted  certain  special  hazards 
to  be  insured,  and  that  they  should  be  approved  by  a  com- 
mittee. The  policy  on  such  special  risk  was  issued,  signed 
by  the  president  and*  secretary,  as  required  by  the  by- 
laws, but  without  the  action  of  the  committee.  Held,  the 
policy  having  been  issued  by  duly  authorized  agents  upon 
full  knowledge  of  all  facts,  the  company  must  be  held  to 
have  waived  the  action  of  the  committee  which  was  pre- 
liminary, therefore  the  defense  of  want  of  consideration  is 
not  sustained.  Merchants'  &  Man.  Ins.  Co.  v.  Curran,  45 
Mo.  142.     1869. 

§  19.  The  conditions  of  insurance  annexed  to  tho 
policy  being  "made  part  thereof,"  have  the  samefr>i  •  •  d 
effect  as  if  contained  in  the  body  of  the  policy.  ees 

V.  Manhattan  Ins.  Co.  5  Vroom  (34  N.  J.  Law),  2        1870. 

See  Alteration,  §  8.  Application.  3.  Asscamient,  7,  72,  73.  Ctrtiflca'-', 
18,  23.  Foreigii  Ins.  Cos.,  43.  Other  Insurance,  57,  131.  Preliminary 
Proofs,  28,  81.    Premium  Notes,  19.     Valued  Policy,  7.    Venue,  7. 


CAMPHENE. 

§  1.  Where  the  conditions  annexed  "  were  referred  to 
and  to  be  resorted  to,  to  explain  the  rights  and  obligations 
of  the  parties  to  the  contract,"  <fec. ;  and  one  of  the  condi- 
tions read,  "Camphene  cannot  be  used  in  the  building 
where  insurance  is  eflfected,  unless  by  special  permission 
in  writing,  and  is  then  to  be  charged  an  extra  premium ;" 
and  defendants  proved  that  camphene  had  been  used  in 
the  building,  but  that  it  had  been  taken  out  before  the  fire, 
and  lower  court  ruled  out  the  evidence ;  Held^  that  the 
evidence  ought  to  have  been  admitted,  as  the  prohibi- 
tion of  its  use  in  the  building  must  be  taken  and  regarded 
as  a  part  of  the  contract,  and  was  a  warranty  that  camphene 
should  not  be  used  in  the  building  insured ;  and  further, 
that  the  removal  of  the  camphene  before  the  fire  would  not 
restore  the  validity  of  the  policy,  without  the  consent  of 
both  parties,  unless  the  insurer  by  some  act  or  line  of 
conduct  waived  the  breach  or  violation  of  the  warranty. 
Mead  v.  Northumberland  Ins.  Co.  3  Seld.  N.  Y.  530. 
1852.  ' 

§  2.  Where  policy  contained  the  usual  clause  against 
an  "  appropriation  or  use  of  the  premises,"  or  "  any  part 
thereof,"  <fec.,  and  the  classes  hazardous,  extra  hazardous, 
and  memorandum  of  special  hazardous  goods  and  trades 
were  enumerated,  and  at  bottom  of  special  hazardous  was 
this  clause :  "  Camphene,  spirit  gas,  or  burning  fluid,  when 
used  in  stores  or  warehouses  as  a  light,  subjects  the  goods 
therein  to  an  extra  charge  of  10  cents  per  $100,  and  pre- 
mium for  such  use  must  be  indorsed  on  the  policy,"  and 
it  appearing  that  camphene  nad  been  used  for  lighting  in 
the  store  insured  up  to  the  time  of  the  fire,  without  per- 
mission or  payment  of  extra  charge  ;  Held,  that  the  use  of 
it  was  prohibited,  and  that  the  policy  was  void.  Westfal 
V.  Hudson  Kiver  Fire  Ins.  Co.  2  Kern.  N.  Y.  289.  1855. 
Reversing  2  Duer,  N.  Y.  490. 

^  3.  Where  a  condition  in  a  policy  provides  that 
"  this  company  will  not  be  liable  for  any  loss,  occasioned 
by  camphene  or  other  inflammable  liquid ;"  it  means,  not 
that  the  fire  must  originate  with  the  camphene,  by  its  own 


g^aaaBBta 


156 


CANCELLATION. 


ignition,  but  as  a  medium  of  its  communication  from  out- 
side or  other  cause,  thus  occasioning  a  fire  which  would . 
not  have  happened,  but  for  tlie  presence  of  that  article  on 
the  premises.    Harper  v.  City  Ins.  Co.  1  Bosw.  N.  Y.  520. 
1857. 

§  4.  A  clause  in  policy  of  insurance  on  "  stock  of  cap 
fronts  and  other  goods"  provided  that  "  lighting  tho  prem- 
ises insiu*ed,  by  camphene  or  spirit  ga.?t,  without  wntten 
permission  in  the  policy,  shall  render  it  void."  Held^  to 
apply  to  insurance  on  merchandise,  as  well  as  on  build- 
ings, and  to  be  binding  on  insured.  Stettiner  v.  Granite 
Ins.  Co.  5  Duer,  N.  Y.  594.     1858. 

See  Parol  Evidecce,  §  22.    Use  and  Occupation,  46.    Written  Portion  of 
f  Policy,  4,  6. 


U 


CANCELLATION. 

§  1.  Policy  cannot  be  canceled  by  a  vote  of  the  com- 
pany, and  notice  to  the  holder,  unless  the  latter  consent  to 
the  same  (no  evidence  in  the  case  of  any  clause  giving  the 
riffht  to  cancel).  Alliance  Mut.  Ins.  Co.  v.  Swift,  10  Cush. 
Mass.  433.     1852. 

§  2.  Where  condition  of  policy  provided  for  cancel- 
ing the  policy,  if  policy  should  be  deemed  undesirable, 
and  the  msurers  instructed  their  agent  to  cancel  the  policy, 
but  instead  of  so  doing  he  only  notified  the  assured  of  th& 
company's  desire  to  cancel,  and  at  the  same  time  agreed 
with  insured  to  let  the  policy  *  .main  until  he  (assured) 
could  effect  another  insurance ;  Jieldy  tliat  the  policy  was 
not  canceled  and  the  insurers  were  liable.  Goit  v.  Na- 
tional Protection  Ins.  Co.  25  Barb.  N.  Y.  189.     1855. 

§  3.  By-law  provided  that,  "  If  the  risk  be  increased 
by  any  change  of  tlie  circumstances  disclosed  in  the  a})pli- 
cation,  cfec,  the  policy  shall  thereupon  be  void,  unless  an 
additional  premumi  and  dej)osit  shall  be  settled  with  and 
paid  to  said  company."  After  ettecting  insurance,  plaintiff 
put  up  seven  additional  stoves  in  the  Iniilding,  and  notified 
defendants  thereof,  admitting  it  to  be   an  "increase  of 


CANCELLATION. 


157 


risk."  Defendants  replied,  declining  to  continue  the  in- 
surance, and  said  they  would  surrender  his  premium  note 
without  charge.  Plaintiff  wrote  again  to  know  if  they 
would  not  return  also  the  cash  premium  that  had  been 
paid  by  him,  and  that  if  so,  he  would  be  satisfied,  and  get 
insured  elsewhere ;  and  company  replied  that  they  would 
not,  but  would  make  no  assessment  on  his  note.  After- 
wards the  property  was  destroyed,  before  anything  was 
done.  Ileldy  that  this  was  notice  to  the  plaintiff  that  the 
company  declined  to  assume  the  "increased  risk,"  and 
elected  to  terminate  their  insurance  under  the  above  by- 
law, and  that  thereupon  their  policy  was  void.  Fabyan  v. 
Union  Mut.  Fire  Ins.  Co.  33  N.  H.  203.     1856. 

§  4.  Where  in  pursuance  of  an  agreement  made  with 
an  agent,  a  party  took  out  a  new  policy,  u.ad  at  the  same 
time  sent  an  old  policy  to  another  compaay  with  instruc- 
tions to  cancel  the  same  as  of  that  date ;  Held,  that  as  be- 
tween the  insured  and  the  former  company,  on  a  question 
of  other  insurance,  the  old  policy  was  to  be  deemed  can- 
celed as  of  the  date  stated,  though  not  actually  received 
and  canceled  by  the  company  until  afterwards.  Atlantic 
Ins.  Co.  v.  Goodall,  35  N.  H.  328.     1857. 

§  5.  Policy  issued  by  agent,  with  provision  for  re- 
newal on  payment  of  premium,  to  be  indorsed  on  policy 
or  otherwise  acknowledged  by  secretary  or  authorized 
officer  of  the  company,  ilenewed  several  times  by  agent. 
At  last  renewal,  company  directed  agent  to  return  pre- 
mium, and  cancel  the  policy.  Agent  notified  insured,  but 
did  not  return  premium  for  a  few  days  for  want  of  funds, 
and  in  the  mean  time  fire  occurred.  Held,  that  as  the  acts 
of  the  agent  in  making  these  renewals  had  been  several 
times  ratified,  he  must  V)e  deemed  authorized  for  that  pur- 
pose, and  tliat  the  company  must  pay  the  loss.  Franklin 
Fire  Ins.  Co.  v.  Massy,  33  Penn.  St.  221.     1859. 

§  6.  A  receipt  in  the  following  form :  "  The  Times 
<fe  Beacon  Assurance  Company,  Agent's  Office,  Brantford, 
3d  Febiiiary,  1868.  Received  from  Messrs.  T.  (jood fellow 
&,  Co.  the  Slim  of  fourteen  dollars,  being  the  premium  for 
an  insurance  to  the  extent  of  $2,000,  on  property  de. 
scribed  in  the  order  of  this  date,  subject  to  the  approval 


ti 


I 


11 


'-"""""""■^" 


158 


CANCELLATION. 


of  the  board  at  Kingston,  the  said  party  to  be  considered 
insured  for  twenty-one  days  from  the  above  date,  within 
which  time  the  determination  of  the  board  will  be  notified. 
If  approved,  a  policy  will  be  delivered;  otherwise  the 
amount  received  will  be  refunded,  less  t^^e  premium  for 
the  time  so  insured."  Held^  not  an  absolute  insurance  for 
twenty-one  days  certain,  but  that  the  company  might 
within  that  period  reject  the  risk,  and  give  notice,  after 
which  their  liability  would  cease.  Goodfellow  v.  Times 
«fe  Beacon  Assurance  Co.  17  Upper  Canada,  Q.  B.  411. 
1859. 

§  7.     One  of  the  by-laws  of  a  mutual  fire  insurance 
company,  annexed  to  and  made  a  part  of  its  policies,  pro- 
vided, amongst  other  things,  that  it  should  "  be  optional 
with  the  company  to  terminate  the  insurance  after  seven 
days'  notice  given  to  the  insured,  or  his  representative,  of 
their  intention  to  do  so,"  in   which  case,  they  were  to 
refund  a  ratable  portion  of  the  premium.     In  winding  up 
the  affairs  of  the  company,  under  a  company  vote  to  that 
effect,  the  directors  and  their  committee  ordered,  that  the 
class  of  policies  which  included  the  plaintiffs,  should  be 
canceled  on  the  15th  of  February,  "or  as  soon  after  the 
date  named,  as  shall  be  found  practicable,  allowing  for 
due  notice  to  all  parties,  and  reasonable  time  to  procure 
new  insurance."    On  the  evening  of  the  13th  February, 
but  after  the  closing  of  the  post-office,  a  notice,  directed  to 
the  plaintiff,  was  deposited  in  the  post-oflice,  informing 
him  that  all  policies  of  the  class  of  his  would  be  canceled 
on  the  20th  of  February,  and  that  from  and  after  that 
date,  no  member  of  the  class  would  be  held  insured  or 
liable  to  assessment.     The  plaintiff  received  this  notice  on 
the  14th  February,  and  on  the  22d  February,  his  property 
covered  by  the  policy  was  destroyed  by  fire ;  Held^  in  a 
suit  by  him  upon  the  policy,  that  he  could  not  recover 
this  loss,  inasmuch  as  at  the  time  of  the  loss  his  policy 
had  been  canceled,  and   he  had,  within  the  letter  and 
spirit  of  the  by-law,  received  seven  days'  notice  of  the 
intent  of  the  company  to  cancel  his  policy  on  a  day  subse- 
quent to  the  giving  of  the  notice.    Emmott  v.  Slater  Mut. 
Fire  Ins.  Co.  7  R.  1.  562.    1863. 

§  8.    A  vote  by  the  directors  of  a  mutual  insurance 


I 


CANCELLATION. 


159 


company,  canceling  all  outstanding  policies,  with  a  provis- 
ion that  the  cancellation  shall  take  effect  on  a  certain 
day,  does  not  take  away  their  authority  after  that  day,  to 
lay  a  necessary  assessment  upon  the  deposit  notes.  Fay- 
ette Mut.  Fire  Ins.  Co.  v.  Fuller,  8  Allen,  Mass.  27.  1864. 

§  9.  Ihe  promise  of  an  agent  of  an  insurance  com- 
pany that  the  company  will  surrender  a  premium  note  in 
consideration  of  the  payment,  by  the  maker  of  the  amount 
of  an  =ies8metft  made  thereon,  and  the  suiTender  by  him 
of  hii  olicy,  is  without  consideration  and  void.  Sands  v. 
Hill,  -xj  Barb.  N.  Y.  651.     1865. 

§  10.  The  directors  having  a  right  to  cancel  any  policy 
at  any  time  for  cause,  voted  to  notify  all  policy  holders  to 
pay  deposit  notes  in  fiiU  within  thirty  days,  on  penalty  of 
cancellation  of  the  policy.  On  the  omission  of  a  policy 
holder  on  this  notice  to  pay  his  note,  the  directors  notified 
him  to  pay  immediately,  or  to  deliver  his  policy  to  be 
canceled.  Ifeld,  to  be  mere  notice  that  in  a  certain  event 
the  company  would  cancel,  and  not  amounting  to  a  can- 
cellation. Lyman  v.  State  Mut.  Ins.  Co.  14  Allen,  429. 
1867. 

§  11.  As  a  party  cannot  rescind  his  contract  without 
placmg  the  other  party  i7i  statu  quo,  a  policy,  reserving  a 
right  of  cancellation  on  certain  events,  cannot  be  canceled 
without  pa}Tnent  back  o^*  tender  of  the  unearned  pre- 
mium. And  when  a  notice  of  cancellatior  is  handed  to 
assured,  containing  a  request  to  call  and  receive  his  return 
premium,  his  saying  "  All  right "  before  reading  it,  is  not 
an  assent.  Peoria  F.  &  M.  Ins.  Co.  v.  Botto,  47  111. 
516.     1868. 

§  12.  When  the  policy  reserves  a  right  of  election  to 
terminate  it,  on  increase  of  risk  from  specified  causes, 
when  the  unearned  premium  will  be  returned ;  Held, 
the  company  can  terminate  the  liability  on  such  increase 
of  risk  by  giving  the  notice  and  tendering  back  the  un- 
earned premium.  Albany  City  Ins.  Co.  v.  Keating,  46 
111.  395.     1868. 

§  13.  A  company  could  terminate  insurance  after 
notice  of  such  intention  to  assured,  and  would  then 


m 


I '  i 


160 


CANCELLATION. 


refund,  &c.  The  company  pleaded  under  this  condition, 
an  election  to  terminate,  a  notice  to  assured,  and  tender 
of  premium.  A  demurrer  on  the  ground  that  the  condi- 
tion requii'ed  a  termination  after  election  and  notice  was 
overruled.  Cain  v.  Lancashire  Ins.  Co.  27  U.  C.  Q.  B. 
217  &  453.     1868. 

§  14.  A  policy  reserved  tlie  right  to  cancel.  The 
company  gave  notice  to  the  assured  (who  liad  not  paid 
the  premium,  but  had  assigned  the  policy  unknown  to  the 
company),  that  unless  the  premium  were  paid  on  such  a 
day  the  policy  would  be  canceled  the  day  after.  The 
money  was  not  paid,  and  a  loss  afterwards  occurred. 
Heldy  the  company  had  a  right  to  treat  the  policy  as 
rescinded  on  the  designated  day,  and  no  further  act  was 
required  of  them  to  effect  the  rescission.  The  acknowl- 
edgment of  receipt  of  premium  in  the  policy  may  be  con- 
tradicted. Bergson  v.  Builders'  Ins.  Co.  38  Cal.  541. 
1869. 

§  15.  A  policy  reserved  the  right  of  cancellation  on 
notice  and  return  of  premium.  The  company  sent  the 
cancellation  card  to  the  agent,  who  sent  to  assured,  but 
afterwards  told  him  not  to  mind,  that  there  was  a  misap- 

Erehension,  he  would  carry  the  risk  until  he  heard  from 
im  again.  This  intended  act  of  cancellation  is  not  ac- 
cepted by  the  assured's  writing  to  the  agent  to  transfer 
the  policy  into  another  company,  which  was  not  done. 
The  premium  money  must  be  actually  tendered  back  with 
the  cancellation.  Informing  the  assured  that  it  is  subject 
to  his  order  is  not  enough.  vEtna  Ins.  Co.  v.  Maguire,  61 
111.  342.     1869. 

§  16.  The  affent  informed  assured  that  he  was  in- 
structed to  cancel  the  policy,  that  he  would  eive  him  a 
check  for  the  return  premium  next  day  at  twelve  o'clock, 
to  which  assured  assented.  The  premium  was  not  paid 
or  tendered  next  day,  nor  was  any  attempt  to  cancel  the 
policjr  made  until  a  loss  occurred.  Hela^  the  policy  was 
still  in  force. 

A  promise  by  the  assured  to  bring  the  policy  to  the 
office  to  be  canceled,  when  he  is  to  receive  the  return  pre- 
mium, is  neither  a  valid  agreement  to  deem  the  policy 


CERTIFICATE. 


161 


a 
e 
t 
)- 
a 

3- 

ir 

h 

;t 
1 


a 


: 


le 

IS 

le 


canceled  without  return  of  the  premium,  nor  a  waiver  of 
this  condition  upon  which  rests  the  right  of  cancellation. 
Hathom  v.  Germania  Ins.  Co.  55  Barb.  28.     1869. 

§  17.  A  condition  that  in  case  of  other  insurance 
notice  aust  be  given  and  approval  indorsed,  and  that  a 
resolution  avoiding  the  policy,  and  a  copy  mailed  to  the 
assured,  should  avoid  the  cause.  The  assured  applied 
elsewhere  for  other  insurance,  and  received  an  interim 
receipt  binding  the  company  until  the  risk  should  be 
repudiated,  which  was  not  done  until  after  fire,  and  in 
ignorance  of  it.  No  notice  of  this  other  insurance  was 
given  to  defendants  until  they  received  the  notice  of  loss 
from  plaintiff,  the  second  day  after  which  they  mailed  to 
him  their  resolution  avoiding  the  policy.  Held,  as  from 
all  the  evidence  the  other  insurance  was  binding,  and  as 
there  was  no  notice  of  it  given  to  defendants,  the  latter 
could  avoid  their  policy  even  after  the  fire.  Bruce  v. 
Gore  Distr.  Mut.  Ins.  Co.  20  U.  C,  C.  P.  207.     1869. 

§  18.  Clause  requiring  immediate  notice  in  case  of 
other  insurance,  and  the  consent  of  the  directors  indorsed 
on  the  policy,  otherwise  it  is  to  be  void ;  Held,  the  assured, 
in  effecting  other  insurance,  runs  the  risk  of  getting  the 
defendant's  assent,  and  the  question  of  reasonable  time  in 
giving  notice  and  getting  assent,  does  not  arise.  Wei- 
naugh  V.  Provincial  Ins.  Co.  20  U.  C,  C.  P.  405.     1870. 

See  EBtoppel,  §  13, 14,  16.    PreHlum  Notes,  48. 


CERTIFICATE. 


§  1.  Printed  proposals  referred  to  by  the  policy  re- 
quired the  insured  to  procure  a  certificate  touching  the 
loss,  signed  by  the  minister,  church  wardens,  and  some 
respectable  householders  of  the  parish.  The  insured  ob- 
tained the  certificate  of  several  householders,  and  alleged 
that  the  minister  and  wardens  wrongfully  refused  to  sign 
it.  Held,  that  the  printed  proposals  were  to  be  deemed 
part  of  the  policy,  and  that  compliance  with  the  require- 
ment of  a  certificate  signed  by  the  minister  and  wardens, 
11 


Mi 


162 


CERTIFICATE. 


w 

I  'I 

1    l 

I 


was  a  condition  precedent;  and  it  made  no  difference 
whether  they  refused  to  sign  wrongfully  or  rightfully; 
though  in  this  case,  in  point  of  fact,  the  refusal  was  right- 
ful. Worsley  v.  Wood,  6  Dufnf.  and  East,  711.  36  Geo. 
III.  Worsley  v.  Wood,  2  H.  Black.  574.  36  Geo.  IIL 
1795.  Also,  Oldman  v.  Berwicke,  2  H.  Black.  577,  note. 
36  Geo.  III.  1795.  To  same  effect  as  to  certificate,  see 
Routledge  v.  Burrel,  1  H.  Black.  254.     1789. 

§  2.  Where  condition  of  policy  required,  in  the  event 
of  loss  and  before  payment  thereof,  a  certificate  of  a  magis- 
trate or  notary  public,  importing  that  they  are  acquainted 
with  the  character  and  circumstances  of  the  assured,  and 
do  know  or  verily  believe  that  they  have  really  and  by 
misfortune,  without  fraud,  sustained  loss  by  fire  to  the 
amount  therein  mentioned,  &c. ;  Held,  that  such  (jertificate 
was  a  condition  precedent  to  a  recovery  of  any  loss,  and  if 
a  certificate  be  procured,  in  which  a  knowledge  and  belief 
as  to  the  "  amount "  of  loss  is  omitted,  it  is  insufficient, 
Scott  V.  Phoenix  Assurance  Co.  1  Stuart,  Lower  Canada, 
354.     1829. 

§  3.  Where  the  justice  granting  the  certificate,  certi- 
fied therein  that  he  was  not  interested  in  the  loss,  and  a 
witness  testified  that  the  justice  lived  nearer  the  insured 
premises,  as  he  thought,  than  another  justice  named,  but 
did  not  know  where  the  other  justice  resided,  nor  but 
what  a  clergyman  or  notary  public  resided  nearer  the 
premises  than  the  justice ;  Iieldy  that  this  made  out  a 
prima  facie  case  of  compliance  with  the  condition  of  the 
policy  on  the  subject,  and  threw  the  burden  of  proving  a 
nearer  magistrate,  and  the  interest  of  the  certifying  ' 
tice,  on  the  other  side.  Coniel  v.  Leroy,  9  Wend. 
163.     1832. 


ing  JUS- 
I.  N.  Y. 


§  4.  In  an  action  against  an  insurance  company  for 
a  loss  by  fire,  the  declaration  averred  that  certain  affida- 
vits, required  by  the  conditions  of  the  policy,  were  made 
by  A.  B.  and  C.  D.  Jleld,  that  proof  of  affidavits  by 
such  parties  was  indispensable,  as  well  as  that  the  affida- 
vits should  strictly  conform  to  the  terms  of  the  policy. 
Alderman  v.  West  of  Scotland  Ins.  Co.  5  Upper  Canada, 
K.  B.  37.     1830. 


CERTIFICATE. 


163 


'^ 


§  5.  Where  the  nearest  officer,  who  was  a  clergyman, 
certified  as  to  the  plaintiff's  character,  and  that  he  verily 
believed  that  the  fire  was  the  result  of  misfortune,  and 
without  any  fraud  or  evil  practice,  but  declined  certifying 
as  to  the  amount,  solely  upon  the  ground  of  not  having 
any  such  knowledge  of  the  amount  of  property  consumed 
as  to  justify  him  in  making  any  such  certificate ;  Heldy 
not  to  be  a  compliance  on  the  part  of  assured  with  a  con- 
dition in  the  policy  requiring  a  certificate  of  the  amount 
of  the  loss  or  damage  sustained  by  the  fire.  Roumage  v. 
Mechanics'  Fire  Ins.  Co.  1  Green,  N.  J.  110.     1832. 

§  6.  An  article  provided  that "  all  persons  assured  by 
this  company,  sustaining  any  loss  or  damage  by  fire,  are 
forthwith  to  give  notice  to  the  company ;  and  as  soon  as 
possible  thereafter,  deliver  in  a  particular  account  of 
their  loss,"  &c. ;  "and  shall  procure  a  certificate,"  &c.; 
Held,  that  the  words,  "  as  soon  as  possible,"  did  not  apply 
to  the  certificate,  which  was  only  required  to  be  produced 
within  a  reasonable  time.  In  this  case  the  original  cer- 
tificate was  first  objected  to  at  the  trial,  and  the  objection 
was  sustained  in  the  Supreme  Court ;  and  immediately 
afterward,  five  years  after  the*  loss,  insured  procured 
another  and  satisfactory  one ;  ITeldj  that  this  delay  was 
not  unreasonable.  Columbian  Ins.  Co.  v.  Lawrence,  10 
Pet.  U.  S.  507.     1836. 

§  7.  A  stipulation,  '"that  the  assured  was  not  en- 
titled to  recover  or  sue  for  a  loss  until  affidavit  and 
proper  certificate  of  loss  are  produced,"  is  a  condition 
precedent  to  the  right  of  action  by  the  assured.  Colum- 
bian Ins.  Co.  v.  Lawrence,  10  ret.  U.  S.  507.  1836. 
Columbian  Ins.  Co.  v.  Lawrence,  2  Pet.  U.  S.  25.     1829. 

§  8.  Where  the  condition  in  policy  required  that  the 
magistrate  should  state  in  his  certificate,  that  he  is  "  ac- 
quainted with  the  character  and  circumstances  of  the  per- 
son or  persons  insured,  and  that  having  investigated  the 
circumstances  in  relation  to  such  loss,  does  know  or  verily 
believe  that  he,  she,  or  they  really,  and  by  misfortune,  and 
without  fraud  or  evil  pratice,  hath  or  have  sustained,  by 
such  fire,  loss  and  damage  to  the  amount  therein  mention- 
ed," and  where  the  certificate  of  the  magistrate  was,  that 


I 'I 

ill 

I 

11 


i!' 


164 


CBRTIFIOATE. 


he  was  acquainted  with  the  insured,  and  had  examined  the 
circumstances  attending  the  fire,  and  was  satisfied  and  did 
verily  believe  that  the  insured,  by  misfortune,  and  without 
fraud  or  evil  practice,  sustained  damage  or  loss  by  said  fire 
to  the  amount  of  the  buildings  mentioned  in  the  proofs, 
but  did  not  state  that  he  was  acquainted  with  the  charac- 
ter and  circumstances  of  the  insured,  and  did  not  state  the 
amount  of  loss  and  damage  sustained ;  Held,  that  though 
not  in  precise  language  of  the  condition,  yet  it  was  a  suf- 
ficient compliance.  jEtna  Fire  Ins.  Co.  v.  Tyler,  16  Wend. 
N.  Y.  385.     1836. 

§  9.  Where  two  nearest  magistrates  refused  the  cer- 
tificate, and  that  of  the  next  nearest  was  obtained ;  Jleldf 
that  a  condition  of  the  policy,  requiring  a  certificate  from 
the  magistrate  most  contiguous  to  the  fire,  was  not  com- 
plied with,  and  the  insurance  not  recoverable.  Leadbetter 
V.  ^tna  Ins.  Co.  13  Me.  265.     1836. 

§  10.  The  policy  required  a  certificate  from  the  magis- 
trate or  notary  most  contiguous  to  the  fire.  It  appeared 
that  a  notary  lived  a  few  feet  nearer  the  fire  than  the  cer- 
tifying magistrate,  but  whether  his  office  was  nearer  did 
not  appear.  It  was  held  that  the  office  might  be  regarded 
in  ascertaining  the  magistrate  most  contiguous ;  and  further, 
that  the  maxim,  de  minimis,  <fec.,  applied,  and  the  court 
would  not  go  into  a  nice  calculation  touching  the  discrep- 
ancy of  a  few  feet  in  the  distances.  It  further  appeared 
that  the  certificate  was  defective,  and  the  agent  made  writ- 
ten objections,  but  did  not  specify  the  defects,  and  refused 
to  let  assured  see  the  original  certificates  deposited  with 
him;  and  the  court  refused  to  consider  the  defects.  It 
was  the  duty  of  the  company  to  point  out  the  defects, 
and  give  every  facility  for  their  correction.  Turley  v. 
North  American  Fire  Ins.  Co.  25  Wend.  N.  Y.  374. 
1841. 

§  11.  If  certificate  were  not  that  of  the  nearest  magis- 
trate, and  the  company  refused  to  pay  on  other  grounds, 
they  were  held  to  have  waived  the  objection.  O'Niel  v. 
Buffalo  Fire  Ins.  Co.  3  Comst.  N.  Y.  122.     184<.K 

§  12.    Where  policy  required  a  certificate  of  a  '*  magis- 


\ 


OERTIFIOATE. 


165 


I 


trate  or  notary  public  (most  contiguous  to  the  place  of 
the  fire,  and  not  concerned  in  the  loss,  or  related  to  the  in- 
sured)," and  assured  applied  to  the  nearest  magistrate,  who 
was  in  every  way  qualified  to  grant  it,  but  refused  to  do 
so,  and  assured,  thereupon,  obtained  a  certificate  of  another 
magistrate  over  a  mile  distant ;  Held,  that  any  difference 
in  point  of  distance,  from  the  place  where  the  fire  occurred, 
between  the  residence  of  the  justices,  was  "  material " — 
made  so  by  the  express  terms  of  the  contract — and  the 
jury  were  bound  to  regard  such  difference  in  distance,  as 
material,  without  any  further  inquiry  on  the  subject.  Pro- 
tection Ins.  Co.  V.  Pherson,  5  Port.  Ind.  417.     1854. 

§  13.  Where  a  company,  after  receiving  a  certificate, 
which  was  not  in  compliance  with  the  condition  of  the 
policy,  entered  upon  an.  investigation  of  the  loss,  without 
unmediately  objecting  to  the  certificate,  and  offered  to  pay 
a  certain  amount,  which  was  refused  by  assured,  and  then 
notified  him  that  "  they  should  expect  a  strict  compliance 
with  the  conditions  of  the  policy,  and  require  the  produc- 
tion of  a  certificate  from  the  nearest  notary ; "  Jfetd,  that 
these  facts  did  not,  as  a  matter  of  law,  establish  a  waiver 
of  the  company's  right  to  demand  a  strict  compliance  with 
their  condition,  but  it  was  for  the  jury  to  decide  whether 
there  had  been  such  waiver.  Noonan  v.  Hartford  Fire 
Ins.  Co.  21  Mo.  81.     1855. 

§  14.  Where  policy  required,  among  other  things  in 
event  of  loss,  the  certificate  of  a  magistrate  most  contig- 
uous to  the  fire,  <fec.,  and  the  assured  obtained  the  certificate 
of  a  magistrate  fourteen  miles  distant  from  the  fire,  when 
other  magistrates  were  nearer,  and  some  even  in  the  vil- 
lage where  the  fire  occun*ed,  and  the  magistrate  granting 
the  certificate  at  time  of  making  it,  called  attention  of  the 
assured  to  the  fact  that  he  was  not  most  contiguous,  but 
assured  yet  persisted  in  having  him  make  it ;  Held,  that 
such  certificate  was  insufficient,  and  not  in  compliance  with 
the  condition.  Lampkin  v.  Western  Assurance  Co.  13 
Upper  Canada,  Q.  B.  237.     1855. 

§  15.  Where  condition  of  the  policy  required  the  pro- 
duction of  a  certificate  of  a  magistrate  nearest  to  the  fire, 
and  not  interested  in  the  loss,  or  related  to  the  insiu-ed, 


166 


CERTIFICATE. 


and  after  the  fire  the  assured  obtained  a  certificate  from 
the  nearest  magistrate,  which  did  not  conform  with  the 
requirements  of  the  policy,  and  subsequently  obtained  two 
other  certificates,  which  were  in  conformity  with  the  pol- 
icy, from  magistrates  residing  at  a  gi'eater  distance  from 
the  fire  than  the  first  magistrate ;  I&ldy  that  the  condition 
was  binding,  and  must  be  complied  with,  and  that  as  there 
had  not  been  a  compliance  in  this  case,  assured  could  not 
recover.  Noonan  v.  Hartford  Fire  Ins.  Co.  21  Mo.  81. 
1855. 

§  16.  Where  assured  maue  statements  of  loss,  and  ver- 
ified them  by  affidavit ;  and  appraisers  also  certified  to  the 
amount  of  the  loss ;  but  the  certificate  of  the  magistrate 
was  defective,  in  that  it  only  stated  that  he  had  made  dil- 
igent inquiries  as  to  the  cause  of  the  fire ;  without  making 
the  other  statements  required  by  the  condition  of  the  pol- 
icy ;  Held,  that  it  was  not  a  fatal  objection  when  taken  at 
the  trial  for  the  first  time.  Bilbrough  v.  Metropolis  Ins. 
Co.  of  N.  Y.  5  Duer,  N.  Y.  587.     1856. 

§1*7.  Where  policy  was  issued  to  K.,  and  made  pay- 
able to  W.,  and  provided  that  in  case  of  loss,  the  insured 
should  deliver  to  the  insurer  a  particular  account,  <fec.,  of 
such  loss,  and  that  he  should  procure  a  certificate  under 
the  hand  and  seal  of  a  magistrate  or  notary  public  (most 
contiguous  to  the  place  of  fire,  and  not  concerned  in  the 
loss  as  a  creditor,  or  otherwise  related  to  the  assured) ; 
Held,  that  as  it  did  not  appear  that  W.  had  any  legal  in- 
terest, it  was  not  necessary  to  state  that  he  was  not  re- 
lated to  the  notary.  Ketchum  v.  Protection  Ins.  Co.  1 
Allen,  N.  B.  136.     1848. 

§  18.  The  stipulation  in  the  condition  of  a  policy, 
that  affidavit  of  the  loss  shall  be  made  before  the  nearest 
magistrate,  is  merely  directory,  and  cannot  be  construed  as 
a  condition  precedent  to  the  liability  of  the  insurer.  So 
that,  although  two  magistrates  were  nearer  than  the  one 
whose  affidavit  was  obtained,  but  they  were  creditors  of 
assured,  that  of  the  third  is  a  sufficient  compliance  with 
condition,  ^tna  Fire  Ins.  Co.  v.  Miers,  5  Sneed,  Tenn. 
139.     1857. 

§  19.     Assured  made  up  his  statement  of  loss  irregu- 


CERTIFICATE. 


167 


larly,  and  upon  receipt  of  8arae,  the  secretary,  by  letter, 
called  his  attention  to  the  condition  of  the  policy  upon  the 
subject  of  preliminary  proofs  and  magistrate's  certificate, 
and  requested  him  to  have  them  made  in  accordance  with 
the  said  condition.  The  assured  then  drew  up  a  statement, 
verified  by  oath  of  himself  and  wife,  as  to  value  of  goods 
in  the  building  at  time  of  fire,  but  did  not  say  whether 
they  were  destroyed  or  not,  or  what  was  the  amount  of 
his  loss  by  such  fire.  The  magistrate's  certificate  was  also 
defective  in  this,  that  whilst  testifying  that  he  verily  be- 
lieved that  assured  had  sustained  loss  to  the  amount  of 
eight  hundred  dollars,  therie  was  nothing  to  show  that  the 
loss  might  not  have  been  on  other  property,  not  insured. 
The  company  received  these  amended  proofs  and  made  no 
objection  to  them.  Held,  that  they  were  clearly  not  in 
compliance  with  the  condition  indorsed  on  the  policy,  and 
that  assured  could  not  therefore  recover ;  Heldj  also,  that 
mutual  insurance  companies  are  not  precluded  from  mak- 
ing such  conditions.  Langel  v.  Mutual  Ins.  Co.  of  Prescott, 
17  Upper  Canada,  Q.  B.  524.  1859.  See  also,  Mann  v. 
Western  Ins.  Co.  17  Upper  Canada,  Q.  B.  190.  1859.  But 
see  the  last  c&se,po8tj  §  22. 

§  20.  Where  policy  required  "  certificate  of  magis- 
trate most  contiguous  to  the  fire,"  and  upon  trial  it  was 
proven,  that  several  magistrates  or  notaries  had  their  places 
of  business  nearer  to  the  ^re  than  the  place  of  business  of 
the  magistrate  whose  certificate  had  been  furnished,  but 
there  was  no  evidence  that  their  places  of  residence  were 
nearer  to  the  fire  than  that  of  the  one  who  eave  the  certifi- 
cate; Ileldy  that  the  certificate  was  suflicient,  and  that 
distances  would  not  be  nicely  calculated  to  ascertain  w^ho 
was  the  nearest  magistrate,  where  the  one  signing  was 
near  by,  and  acquainted  with  all  the  circumstances.  Long- 
hurst  V.  Conway  Fire  Ins.  Co.  U.  S.  D.  Ct.  Iowa,  Northern 
District,  Oct.  1861. 

§  21.  Where,  in  a  certificate,  the  notary  testified  that 
his  residence  was  nearer  than  that  of  any  other  notary  or 
magistrate,  and  it  appeared  that  there  was  a  magistrate's 
office  across  the  street  from  the  fire,  and  somewhat  nearer 
the  fire  than  the  residence  of  the  notary  granting  the  cer- 
tificate :  Ifeldf  that  the  condition  of  the  policy  requiring  a 


168 


CERTIFICATE. 


! 


certificate  of  a  magistrate  or  notary  public,  most  contiffu- 
ous  to  the  fire,  was  substantially  complied  with,  or  if  it 
was  not,  had  been  waived  by  the  failure  on  the  part  of  the 
insurers  to  object  to  it,  and  refusal  to  pay  the  loss  on  other 
grounds.  Peoria  Marine  &  Fire  Ins.  Co.  v.  Whitehill,  25 
111.  466.     1861. 

§  22.  The  plaintiffs  brought  an  action  against  these 
defendants  on  a  policy  of  insurance,  which  provided  that 
the  assured  should  "  ^ive  immediate  notice  of  any  loss  or 
damage  by  fire  withm  fifteen  days,  to  the  agent  of  the 
company,"  <fec.,  <fec.,  and,  "  as  soon  after  as  possible,"  should 
deliver  in  a  particular  account  of  such  loss  or  damage, 
signed  with  their  own  hands,  and  verified  by  their  oath  or 
affirmation ;  *  *  *  that  they  should  also  make  a  declara- 
tion and  produce  certain  certificates  specified;  and  that 
"  untU  such  proofs,  declarations  and  certificate  were  pro- 
duced, the  loss  should  not  be  payable."  At  the  trial  the 
notice  required  was  proved,  but  the  certificate  and  affidavit 
produced  were  afterwards  held  by  the  court  to  be  insuffi- 
cient, and  a  nonsuit  was  entered.  (See  ante  §  19.)  The 
plaintiffs  then,  about  eleven  months  after  the  fire,  fur- 
nished a  new  and  sufficient  affidavit  and  certificate,  and 
brought  another  action,  in  which  the  defendants  pleaded 
that  the  plaintiffs  did  not  as  soon  after  the  fire  as  possible 
deliver  these  papers.  *It  appeared  that  when  the  first 
papers  were  furnished,  defendants  objected  to  their*  suffi- 
ciency, and  that  others  were  a  few  days  after  delivered,  to 
which  no  objection  was  made,  until  the  first  trial.  Jleldy 
that  the  words,  "  as  soon  as  possible,"  must  be  construed 
to  mean  within  a  reasonable  time  under  the  circumstances ; 
and  that  it  was  properly  left  to  the  jury  to  say,  whether, 
considering  all  the  facts,  the  plaintiffs  had  complied  with 
the  condition  by  furnishing  the  second  set  of  papers,  and 
was  not  a  question  of  law  upon  which  the  judge  should 
have  decided.  The  plaintiffs,  while  in  partnership,  had 
purchased  the  land,  on  which  they  afterwards  built  the 
mill  in  question,  which  was  burned,  from  one  A.,  who  held 
their  bond  for  the  balance  of  the  purchase  money.  Before 
the  fire  they  dissolved  partnership  by  a  deed,  in  which  it 
was  agreed  that  Mann  should  wind  up  the  business,  and 
should  hold  the  "  mill  property"  for  hi^  own  use,  but  no 


CHANGE   OP  VENITE. 


16^ 


regular  conveyance  of  it  had  been  executed ;  Held^  that 
the  other  partner,  Hobson,  had  sufficient  interest  to  enable 
him  to  join  in  suing  on  the  policy.  That  the  affidavit  and 
magistrate's  certificate,  last  furnished,  were  sufficient, 
though  Mann,  who  alone  made  the  affidavit,  was  described 
as  solely  interested  in  the  property,  and  the  certificate 
stated  tne  loss  as  his  only.  Maun  v.  Western  Assurance 
Co.  19  Upper  Canada,  Q.  B.  314.     1860. 

§  23.  The  assured,  on  loss,  was  to  produce  such  evi- 
dence as  the  directors  should  reasonably  require;  a 
builder's  certificate,  as  to  value,  having  been  demanded 
by  one  whose  act  the  directors  adopted,  was  a  condition 
precedent  to  a  suit,  the  plaintiff  having  brought  action 
four  days  before  furnishing  it,  must  be  nonsuited.  That 
whether  what  was  furnished  complied  with  the  rec^^ulsition, 
might  be  a  question  for  the  jury.  Fawcett  v.  Liverpool, 
Lond.  <fe  Globe  Ins.  Co.  27  U.  C.  Q.  B.  225.     1868. 

See  Waiver,  §  2. 


CHANGE   OF  VENUE. 

§  1.  Motion  for  change  of  venue  to  county  where  fire 
occurred,  founded  on  affidavit,  "that  to  enable  defend- 
ants to  bring  their  defense  fairly  and  fully  before  a  jury, 
it  will  be  necessary  that  the  said  jury,  or  some  of  them, 
should  have  an  opportunity  of  viewing  the  shop  in  which 
the  said  fire  took  place,"  <bc.  Affidavit  held  insufficient. 
It  should  state  the  reason  why  such  a  view  was  necessary 
to  the  defense.  McLoughlin  v.  Royal  Exchange  Assur- 
ance Co.  9  Irish  Law,  510.     1844. 

§  2.  In  this  case,  on  an  affidavit  like  that  above,  venue 
was  changed.     McDonnell  v.  Carr,  Hayes  R.  375.  •  1832. 


CLASSIFICATION  OF   RISKS. 

§  1.  Where  the  charter  v^  a  mutual  corapany  pro- 
vided that  "  the  corporation  may  divide  applications  for 
insurance  into  two  or  more  classes,  according,  to  the  de- 
gree of  hazard,  and  the  premium  notes  shall  not  in  such 
case  be  assessed  for  the  payment  of  any  losses,  except  in 
the  class  to  which  they  belong; "  Held^  that  such  provision 
was  in  contravention  of  the  general  act  of  1849,  New 
York,  for  the  organization  of  mutual  insurance  com- 
panies, and  was,  therefore,  invalid.  Thomas  v.  Achilles, 
16  Barb.  N.  Y.  491.     1853. 

§  2.  Where  a  mutual  company  was  divided  into  two 
classes  called  the  "merchants'"  and  "farmers'"  depart- 
ments, and  an  assessment  made  on  a  note  in  the  "  mer- 
chants'" department  was  resisted  because  the  company 
had  not  shown  that  losses  had  occurred  in  the  "mer- 
chants' "  department,  and  that,  consequently,  there  were 
debts  which  the  makers  of  the  premium  notes  given  in  that 
dej)artment  were  obliged  to  pay;  Held^  that  the  debts 
which  accrued  from  losses  in  either  of  the  departments 
were  the  debts  of  the  company,  and  that  an  assessment 
to  pay  such  losses  would  be  an  assessment  to  pay  the 
debts  of  the  company.*  That  the  company  could  not  ap- 
pl}^  the  proceeds  of  an  assessment  upon  the  premium 
notes  in  one  department  to  pay  losses  which  had  occurred 
in  the  other,  but  it  could  lawfully  order  an  assessment 
upon  the  pi-emiiim  notes  to  pay  its  debts,  taking  care  to 
apply  the  proceeds  of  the  assessment  according  to  its 
charter  and  by-laws.  Kelly  v.  Troy  Fire  Ins.  Co.  3  Wis. 
254.     1854. 

§  3.  Where  a  charter  of  a  mutual  i*  surance  company 
provided  for  a  division  of  all  risks  into  four  classes,  and 
conferred  upon  the  directors  the  power  of  determining 
rates  and  malciug  and  issuing  all  policies  of  insurance,  and 
a  by-law  was  made  defining  what  kind  of  property  should 
be  insuied  in  the  several  classes,  and  the  directors  had  a 
full  knowledge  of  the  fact  ti:at  a  tannery  to  be  insured 
was  propelled  by  steam,  and  belonged  to  the  4th  class, 
instead  of  the  3d  class,  into  which  it  was  put ;  Held^  in 


CLASSIFICATION    OF   BISKS. 


171 


an  action  on  the  premium  note,  that  the  policy  was  not 
void,  that  the  note  was  valid,  and  that  the  action  of  the 
directors,  though  contrary  to  by-laws,  was  yet  within  the 
scope  of  their  authority,  expressly  conferred  upon  them  by 
the  charter,  and,  therefore,  binding.  Union  Mut.  Fire  Ins. 
Co.  V.  Keyser,  32  N.  H.  313.     1855. 

§  4.  The  Union  Mutual  Insurance  Company  was  or- 
ganized under  the  act  of  April  10,  1849,  in  !New  York. 
The  10th  section  made  it  the  duty  of  the  corporators  to 
declare,  in  their  charter, "  the  mode  and  manner"  in  which 
they  were  to  exercise  their  corporate  powers.  And  they 
declared  in  the  11th  section  of  their  charter,  that  the  cor- 
poration might  divide  applications  for  insurance  into  two 
or  more  classes,  according  to  the  degree  of  hazard ;  and 
that  the  premium  notes  should  not  in  such  case  be  assessed 
for  any  losses,  except  in  the  clasf  to  which  they  should 
belong.  Held,  that  this  provision  of  the  charter  did  not 
conflict  with  any  provision  in  the  act  under  which  it  was 
formed.  In  an  action  upon  a  premium  note,  given  to  this 
company,  for  assessments ;  Held,  that  the  maker  of  the 
note  was  estopped  from  setting  up  the  invalidity  of  the 
charter  in  defense.  White  v.  Coventry,  29  Barb.  N.  Y. 
305.  1858  ;  referring  also  to  White  v.  Selover,  November 
term,  1858  ;  and  '^  'leldon  v.  Roseboom,  same  court,  as  de- 
ciding the  same  puiut. 

§  5.  A  mutual  insurance  company,  organized  under 
the  New  York  General  Insurance  Companies'  Act  of  April 
10,  1849,  may  divide  its  risks  iito  classes,  according  to 
the  degree  of  hazard,  and  assess  the  premium  notes  only 
for  the  payment  of  the  losses  happening  in  the  class  to 
which  such  notes  belong.  White  v.  Ross,  15  Abb.  Pr. 
66.     1860. 

§  6.  Where  the  charter  of  a  mutual  company  author- 
izes a  division  of  the  risks  into  classes,  pad  such  a  division 
is  made,  I  do  not  doubt  that  the  uoto'S  of  any  particular 
class  are  applicable  only  to  losses  in  that  class,  and  cannot 
be  diverted  to  the  payment  of  losses  in  another  class.  It 
is  the  same  thing  as  if  that  class  constituted  the  only  busi- 
ness of  the  company.  Per  Denio,  Ch.  J.,  Sands  v.  Shoe- 
maker, 2  Keyes,  268.  1865.  Co/i^m,  ;>(?/•  Wright,  J.,  in 
Sands  v.  Sanders,  26  N.  Y.  239,  and  28  N.  Y.  416. 


T 


172 


COirOEALMENT. 


[f 
> 

■  f: 
'I 


§  7.  A  premium  note,  given  to  a  mutual  company 
dividing  its  risks  into  classes,  being  by  the  charter  only 
assessable  for  losses  and  other  expenses,  and  only  iu  its 
class,  an  assessment  for  estimated  bad  debts,  «fec.,  and  costs 
of  collection,  is  illegal.  Punctual  payers  cannot  be  assessed 
for  costs  of  collection,  which  should  be  charged  against 
the  delinquent  notes.  And  one  class  cannot  be  called 
upon  to  pay  the  losses  and  expenses  of  another  class. 
York  County  Mut.  Fire  Ins.  Co.  v.  Bo;vden,  57  Me.  286. 
1869. 


CONCEALMENT. 


§  1.  Insurance  bv  the  governor  of  a  fort  in  the  East 
Indies,  interest  or  no  interest,  against  any  European  enemy, 
and  the  fort  was  taken  by  the  French.  Defendant  de- 
fended on  the  ground  of  concealment,  showing,  first,  that 
the  governor  did  not  disclose  the  condition  the  place  was 
in ;  second,  that  he  declared  in  his  letters  that  he  imag- 
ined the  French  would  attempt  the  fort ;  third,  a  letter 
announcing  a  design  to  surprise  the  fort  a  year  before, 
which  had  been  abandoned ;  fourth,  that  he  aLtldpated  a 
Dutch  war.  Policy  held  valid,  the  court  saying,  "  There 
are  many  matters  as*  to  which  the  insured  may  be  inno- 
cently silent:  1st.  As  to  what  the  insurer  knows,  however 
he  came  by  that  knowledge ;  2d.  As  to  what  he  ought  to 
know ;  3d.  As  to  what  lessens  the  risk.  An  underwriter 
is  bound  to  know  political  perils,  <fec."  Carter  v.  Boehm, 
1  W.  Black.  593,  6  Geo.  Ill ;  s.  c.  3  Burrows,  1905. 
1 766.    And  Smith's  leading  cases. 

§  2.  The  shop  of  a  boatbuilder  took  fire,  but  it  was 
put  out  in  half  an  hour,  as  was  (supposed.  The  owner 
of  a  warehouse  adjoining,  immediately  procured  insurance 
on  the  same,  without  notifying  the  underwriters  of  the  fire 
in  the  shop.  Two  days  after,  the  shop  again  cot  on  fire 
and  was  consumed,  and  the  warehouse  along  with  it.  The 
jury  acquitted  the  insured  of  intent  to  defraud,  but 
thought  the  insured  should  have  informed  the  insurance 
office  of  the  fire   in  the  shop.     Motion  to  set  aside  the 


;i 


CONCEALMENT. 


173 


verdict,  and  for  new  trial  overruled.    Buffe  v.  Turner,  6 
Taunt.  338  (1  E.  C.  L.  643).     1815. 

§  3.  In  an  action  on  a  policy  by  assured,  the  juiy 
were  held  to  have  been  correctly  instructed,  that  if 
certain  facts,  as  a  threat  to  burn  the  building  insured, 
were  known  to  plaintiff,  and  were  not  made  known  to  the 
company,  and  were  material  to  the  risk,  they  should  find 
for  the  defendants,  although  the  plaintiff  did  not  suppose 
there  was  any  particular  reason  to  fear.  Curry  v.  Com- 
monwealth Ins.  Co.  10  Pick.  Mass.  535.     1830. 

§  4.  The  New  York  Insurance  Company,  after  issu- 
ing a  policy  on  a  "  stock  of  dry  goods,"  learned  that  the 
assured  was  a  man  of  bad  reputation,  and  had  bui'nt  up 
one  or  two  houses  before.  They  then  re-insured  the  risk, 
with  the  New  York  Bowery  Insurance  Compainr,  with- 
holding the  information  they  had  received.  Held^  that 
the  failure  to  make  known  the  information  to  the  re-in- 
surer, whether  from  design  or  mistake,  would  avoid  the 
policy  of  re-insurance,  if  the  information  was  material  to 
the  nsk,  or  would  have  induced  a  higher  rate  of  premium, 
if  known.  New  York  Bowery  Ins.  Co.  v.  New  York 
Fire  Ins.  Co.  17  Wend.  N.  Y.  359.     1837. 

§  5.  If  assured  is  induced  to  insure  by  an  attempt  to 
set  fire  to  an  adjacent  house,  the  destruction  of  which 
would  necessarily  have  destroyed  his  own,  and  conceals 
the  fact  from  the  ui  derwriters,  he  cannot  recover.  Walden 
V.  Louisiana  Ins.  Co.  12  La.  134.     1838. 

§  G.  An  inadvertent  omission  of  facts,  if  material  to 
the  risk,  and  such  as  the  party  insured  should  have  known 
to  be  so,  will  render  the  policy  void.  Deunison  v.  Thorn- 
aston  Mut.  Ins.  Co.  20  Me.  125.     1841. 

§  7.  The  tenant  or  lessee  of  p/emises  effecting  insur- 
ance on  stock  of  goods  is  not  bound  to  disclose  or  com- 
municace  to  the  insurers  the  names  or  pursuits  or  sub- 
tenants living  on  the  premises.  If  insurers  wish  to  guard 
against  the  risk  from  certain  pursuits  or  occupations  of 
tenants  or  sub-tenants,  they  have  it  in  their  power  to  in- 
sert in  t|ie  policy  a  warranty  to  that  effect,  wnich  being  a 
condition  proceaent,  whether  material  or  immaterial,  must 


■ 


174 


CONCEALMENT. 


m:  -f^l^i) 


I 


be  complied  with,  before  any  action  can  be  maintained  on 
the  policy.  Lyon  v.  Commercial  Ins.  Co.  2  Kob.  La.  266. 
1842. 

§  8.  If  premises  were  partly  occupied  by  "  gamblers," 
and  the  llnder^vriter  made  objection  to  the  vicinity  of 
another  gaming  establishment,  and  assured  did  not  make 
known  the  presence  of  "  gamblers  "  in  the  premises  to  be 
insured,  it  would  avoid  the  policy,  if  jury  should  find 
that  the  risk  was  thereby  increased.  Lyon  v.  Commercial 
Ins.  Co.  2  Eob.  La.  266.     1842. 

§  9.  If  insurer  takes  risk,  without  inquiry,  and  rely- 
ing on  his  own  knowledge,  to  avoid  the  policy  there  must 
exist  something  unusual  to  enhance  the  risk.  If  insur- 
ance is  on  cotton  factory,  and  lamps  causing  the  loss  are 
used  in  the  picking  room,  it  must  be  shown,  to  avoid  the 
policy,  that  the  use  of  lamps  in  the  picking  room  was 
unusual.  Clark  v.  Manufacturing  Ins.  Co.  8  How.  U.  S. 
235.     1850. 

§  10.  Where  the  constitution  and  by-laws  of  a  mu- 
tual insurance  company  required  nothing  further  from 
assured  than  an  application  for  insurance,  and  where  they 
provide  for  a  survey  by  the  company,  and,  under  such 
policy,  "  on  personal  property  in  a  mill,"  the  assured  did 
not  make  known  the.  existence  of  a  "  corn  kiln  "  attached 
to  the  mill,  and  from  which  the  fire  originated ;  Held, 
that  in  the  absence  of  any  inquiry  on  the  subject,  the 
assured  was  not  bound  to  disclose  the  existence  of  such 
"  corn  kiln."  Satterthwaite  v.  Mutual  IJeneficial  Ins.  Co. 
14  Penn.  St.  393.     1850. 

§  11.  At  the  time  of  application  for  insurance  on 
"  tavern,  woodhouse,"  &c,  assured  had  commenced  prepa- 
ration for  erecting  a  new  building  near  the  ones  to  be  in- 
sured, but  did  not  notify  insurers  of  such  intention,  no 
inquiries  having  been  made  on  the  subject.  Held,  that 
the  failure  to  communicate  such  intention  to  the  insurers, 
was  not  a  concealment  that  avoided  the  policy.  Gates  v. 
Madison  County  Mut.  Ins.  Co.  1  Seld.  N.  Y.  469.     1851. 

§  12.  Where  the  omission  to  state  certain  facts  in  the 
application,  is  relied  on  in  defense  to  an  action  on  the 


CONCEALMENT. 


175 


policy,  the  question  presented,  in  the  absence  of  warranty, 
would  be  upon  the  materiality  of  the  fact  concealed  to 
the  risk,  and  that  is  a  question  for  the  jury,  and  ought  to 
be  submitted  to  them.  Gates  v.  Madison  County  Mut. 
Ins.  Co.  2  Comst.  N.  Y.  43.  1848.  Gates  v.  Madison 
County  Mut.  Ins.  Co.  1  Seld.  N.  Y.  469.     1851. 

§  13.  The  fact  of  a  pending  litigation,  aifecting  the 
premises  insured,  not  having  been  communicated  to  the 
insurer  at  the  time  of  executing  the  policy,  will  not  avoid 
the  policy.    Hill  v.  Lafayette  Ins.  Co.  2  Mich.  476.    1853. 

§  14.  An  agreement  that  the  builder  would  receive 
lots  of  land  as  a  part  payment  for  work  done  upon  a 
house,  should  be  communicated  at  the  time  of  effecting 
the  insurance,  and  the  value  of  such  land  would  be  de- 
ducted from  the  amount  to  be  paid  in  case  of  loss.  Pro- 
tection Ins.  Co.  V.  Hall,  15  B.  Monroe,  Ky.  411.     1854. 

§  15.  The  neglect  to  disclose  all  circumstances,  mate- 
rial to  the  risk,  even  through  inadvertence,  and  without 
fraud,  will  vitiate  the  policy.  Beebe  v.  Hartford  Mut. 
Ins.  Co.  25  Conn.  51.     1856.      , 

§  16.  When  several  fires  have  occurred  in  and  about 
the  house,  before  applying  for  insurance,  a  failure  to  dis- 
close such  facts  to  agent  is  a  concealment  fatal  to  the 
policy ;  but  if  enough  is  made  known  to  put  the  company 
or  agent  upon  inquiry  for  more,  and  they  fail  to  inquire, 
the  msured  is  not  bound  to  force  his  knowledge  upon 
them.  Beebe  v.  Hartford  Mut.  Ins.  Co.  25  Conn.  51. 
1856. 

§  17.  An  agreement  between  a  mortgagor  and  mort- 
gagee, that  the  mortgagor  was  to  pay  the  premiums  for  an 
insurance,  in  the  names  of  the  mortgagees,  as  a  general 
rule  ought  to  be  disclosed,  and,  not  having  been  disclosed 
in  this  case,  a  new  trial  was  granted,  to  submit  the  ques- 
tion of  its  materiality  to  the  jury.  Kernochan  v.  New 
York  Bowery  Ins.  Co.  5  Duer,  N.  Y.  1.  1855.  Reyersed, 
17  N.  Y.  428.     1858. 

§  18.  "Where  specific  descriptions  of  the  property  are 
required  by  the  terms  of  an  insurance  office,  which  terms 


mmmmmmmmmmm 


176 


CONCEALMENT 


!! 


are  referred  to  and  incorporated  as  part  of  the  conditions 
of  the  policy  of  insurance ;  Jleld,  that  the  suppression  of 
an  immaterial  fact  does  not  invalidate  the  policy.  White- 
hurst  V.  Fayetteville  Mut.  Ins.  Co.  6  Jones'  Law,  N.  C. 
352.     1859. 


19.  The  policy  stipulated  that  the  representations 
in  t£e  application  should  be  a  warranty  on  the  part  of 
assured,  and  contain  a  just,  full  and  true  exposition  of  all 
the  facts  and  circumstances  in  regard  to  the  condition,  sit- 
uation and  value  of  the  property  insured.  The  applica- 
tion stated  that  there  was  a  carpenter  shop  near  the  build- 
ing sought  to  be  insured.  Mela,  that  the  application  was 
not  required  to  state  in  what  manner  the  shop  was  heated ; 
unless,  at  least,  there  was  something  unusual,  something 
not  "  customary,"  in  the  mode  of  heating.  Girard  Fire  & 
Marine  Ins.  Co.  v.  Stephenson,  37  Penn.  St.  293.     1860. 

§  20.  Insurance  was  on  a  stock  of  goods  described  as 
contained  in  a  certain  store.  Defense  was,  that  assured 
had  failed  to  communicate  the  fact,  that  the  upper  part  of 
the  building  was  occupied  for  a  dwelling.  Itetcl,  that  the 
concealment  of  that  fact  was  not  material,  unless  a  dis- 
closure of  it  would  have  induced  the  insurer  to  decline 
the  risk,  or  would  have  enhanced  the  premium.  That  in 
contracts  of  fire  insurance,  it  was  sufficient,  if  the  appli- 
cant for  insurance  made  full  and  true  answers  to  the  ques- 
tions put  to  him  by  the  insurer  in  respect  to  the  subject  of 
insurance ;  he  is  not  answerable  for  an  omission  to  men- 
tion the  existence  of  other  facts  about  which  no  inquiry 
is  made,  unless  he  knows  such  facts  to  be  material,  and  in- 
tentionally fails  to  communicate  them.  Boggs  v.  American 
Ins.  Co.  30  Mo.  63.     1860. 

§  21.  A  suppression  or  misrepresentation  of  material 
facts,  though  from  ignorance,  mistake,  or  negligence,  stands 
on  the  same  ground  in  its  effect  on  a  policy,  as  if  such  sup- 
pression or  misrepresentation  were  wilful.  But  the  prin- 
ciple on  which  this  rule  is  founded,  can  have  no  applica- 
tion to  the  conduct  of  the  insured  subsequent  to  the  mak- 
ing of  the  contract.  Miller  v.  Western  Farmers'  Mut.  Ins. 
Co.  1  Handy,  Ohio,  208.     1854. 

22.    It  is  not  sufficient  to  aver  in  a  plea  to  an  action 


CONCEALMENT. 


177 


upon  a  policy,  that  when  the  application  for  insurance  was 
made,  the  insured  concealed  a  fact  material  to  the  risk, 
and  which  would  have  increased  it  if  known.  It  must 
also  appear  that  the  insured  knew  of  the  existence  of  the 
fact,  and  that  the  fact  itself  was  not  open  and  notorious  at 
the  time  to  all  parties.  It  is  not  every  fact  within  the 
knowledge  of  the  insured  that  he  is  bound  to  disclose,  and 
if  such  facts  as  the  law  will  require  him  to  disclose  are 
within  the  knowledge  of  the  insurers,  or  so  connected  with 
the  subject  insured,  that  his  knowledge  may  be  fairly  in- 
feri'ed,  the  allegation  of  concealment  is  unsupported.  Mer- 
chants' and  Manufacturers'  Mut.  Ins.  Co.  v.  Washington 
^lut.  Ins.  Co.  1  Handy,  Ohio,  408.     1855. 

§  23.  An  omission,  after  the  policy  has  been  issued, 
to  disclose  to  the  insurers  repeated  incendiary  attempts  to 
destroy  the  property  of  the  assured,  will  not  avoid  an  in- 
surance effected  thereon.  Clark  v.  Hamilton  Mut.  Ins.  Co. 
9  Gray,  Mass.  148.     1857. 

§  24.  Where  it  is  provided  in  the  application  for  in- 
surance, which  is  made  a  part  of  the  policy,  that  any  con- 
cealment of  the  condition  or  character  of  the  property  will 
make  the  policy  void,  and  the  applicant  rep^  esented  the 
property  free  from  incumbrance,  Avhen  there  was  at  the 
time  a  mortgage  upon  a  part  of  it ;  Held^  that  such  repre- 
sentation was  a  breach  of  the  contract,  rendering  the  policy 
void,  and  this,  whether  the  false  representation  were  by 
mistake  or  design.  Gould  v.  York  County  Mut.  Fire  Ins. 
Co.  47  Me.  4();i     1859. 

§  25.     A  misrepresentation  or  concealment  in  regard   [ 
to  the  title  of  the  assured  in  the  property  will  avoid  a_J— 
policy  issued  by  a  mutual  insurance  company,  whose  char-  J 
ter,  subject  to  which  the  policy  is  issued,  makes  the  pre- 
mium notes  liens  on  the  property  insured.     Mutual  Ins. 
Co.  V.  Deale,  18  Md.  2(5.     1861. 


§  20.     An 


with 


<?  -JO.  i\.\x  insurance  company  is  chargeable 
kno\vledge  of  all  the  facts  stated  by  an  applicant  for  in- 
surance to  the  company's  agent,  respecting  the  applicant's 
title  and  interest  in  the  insured  premises.  And  if  the 
applicant,  ^^w  apfHying  to  such  agent  for  insurance,  truly 


mm 


mm 


I 


178 


CONCEALMENT. 


state  to  him  the  real  condition  of  the  property,  he  cannot 
be  held  to  have  made  any  misstatement,  or  practised  any 
concealment  in  reference  to  the  company,  notwithstanding 
the  written  application  drawn  up  by  the  agent  varies 
from  such  statement.  Hodgkins  v.  Montgomery  County 
Mut.  Ins.  Co.  34  Barb.  N.  Y.  213.     1861. 

§  27.  Insured  did  not  state  that  the  wing  alleged  to 
contain  merchandise,  was  also  partly  occupied  as  a  kitchen. 
Held,  such  concealment  though  not  fraudulent,  avoided  the 
insurance  clause  requiring  disclosure  of  apparatus  by  which 
heat  is  produced,  except  common  fire-places.  Barsalou  v. 
Royal  Ins.  Co.  15  Lower  Can.  3.     1864. 

§  28.  An  application  which  was  to  be  "  a  just,  full, 
and  true  exposition  of  all  the  circumstances  in  regard  to 
the  situation,  condition,  value  and  risk  of  the  property, 
so  far  as  material  to  the  risk,  represented  the  building  as 
a  new  house,  built  of  wood,  and  in  good  condition,  wnile 
in  truth  it  was  unfinished,  lathed  on  the  outside,  and  not 
yet  plastered,  some  of  the  partitions,  doors  and  windows, 
and  part  of  the  flooring  were  wanting.  The  agent  was 
told  that  the  plastering  and  chimneys  and  doors  were  not 
done.  But  he  swears,  that  had  he  known  it  was  lathed 
on  the  outside,  and  the  laths  not  covered,  he  would  not 
have  taken  the  risk.  '  Held,  the  interrogatories  not  having 
asked,  or  rendered  necessary  any  statement  on  these 
points,  or  given  the  assured  any  reason  to  suppose  them 
material,  and  his  non-communication  not  beins  intentional, 
the  mere  non-statement  does  not  relieve  the  company. 
Laidlaw  v.  Liverpool,  Lond.  &c.  Ins.  Co.  13  Grant's 
Ch.  377.     1867. 

§  29.  The  requirement,  that  everything  material  to 
the  risk  shall  be  stated  in  the  application,  is  not  broken 
by  failure  of  the  assured  to  state  that  he  is  insolvent,  and 
that  there  are  judgments  against  him  which  are  a  lien  upon 
the  property.  City  F.  Ins.  Co.  of  Hartford  v.  Carrugi,  41 
Ga.  660.     1871. 

§  30.  The  application,  which  contained  inquiries  as  to 
whether  the  assured  had  any  reason  to  fear  incendiarism, 
being  lost,  the  written  answer  could  not  be  known,    ^fhe 


CONSEQUENTIAL   DAMAGES. 


179 


assured  testified  that  he  had  expressed  a  fear  of  in- 
cendiaries to  the  agent,  telling  him  that  he  was  discharg- 
ing hands  who  would  be  angry  with  him ;  and  they 
talked  ov^er  various  attempts  to  burn  buildings  in  the 
town ;  that  he  had  not  now  any  fears.  The  agent  told 
him  to  answer  "  No  "  to  the  question.  Held^  That  having 
made  no  disclosure  of  an  attempt  at  incendiarism,  and  his 
finding  a  heap  of  shavings  against  the  building,  that  had 
been  fired,  his  expression  of  fears  to  the  agent  had  not 
been  enough  to  put  the  latter  on  inquiry,  nor  to  give 
him  sufficient  knowledge  of  the  former  attempt,  but 
rather  to  lead  him  away  therefrom,  and  the  assured's 
warranty  of  the  correctness  of  the  answers,  so  far  as  per- 
taining to  the  risk,  is  broken.  North  American  F.  Ins. 
Co.  v.'Throop,  22  Mich.  146.     1871. 

§  31.  When  a  firm  insures  grain  not  in  their  custody 
or  care,  and  the  company  understand  it  so,  and  that  it  is 
held  on  commission  by  assured,  it  is  not  a  material  con- 
cealment, and  is  of  no  importance  for  the  company  to 
know,  that  there  is  an  agreement  of  dissolution  of  the 
firm.  It  is  sometimes  important  to  know  who  is  interested 
in  property,  in  order  to  estimate  the  care  it  will  receive, 
but  in  the  present  case,  as  this  fact  could  not  influence  the 
premium,  its  non-disclosure  is  no  concealment  to  avoid 
the  policy.     Phoenix  Ins.  €o.  v.  Hamilton,  14  Wall.  504. 

18  ri. 

See  Application,  §  21,  28,  39.  Dependency  of  Policy  and  Premium  Note,  1. 
Descriptiim  of  Property  Insured,  35.  Distance  of  Other  Buildings,  4,  5,  11. 
Encumbrance,  3,  40.  Fraud,  12,  14.  Incrcaseof  Risk,  50.  Insurable  Interest, 
6.    Questions  tor  Court  and  Jury,  5,  8.    Risk,  50.    Title,  1,  6,  58,  63,  60,  71. 


CONSEQUENTIAL   DAMAGES. 

§  1.  Policy  on  W.'s  "interest  in  the  ship  Inn." 
Held^  that  insured  could  not  recover  for  loss  of  custom  or 
profits  while  the  Inn  was  repairing.  In  re  Wright  <fe 
Pole,  1  Adolph.  &  Ellis,  621  (28  E.  C.  L.  294).  1834. 
Sun  Fire  Office  v.  Wright,  3  Nev.  &  Man.  819  (28  E.  C. 
L.  627).     1834. 


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180 


CONSEQUENTIAL   DA3IAGES. 


§.-'• 


The  general  principle  that  the  assurers  are 
bound  to  adjust  a  loss  upon  tlie  principle  of  replacing  the 
assured,  as  near  as  may  be,  in  the  situation  they  were  in 
before  the  fire,  has  never  been  understood  to  extend  to 
the  profits  or  fruits  whieh  the  latter  was  drawing  or  might 
have  draAvn  from  the  thing  insured.  Leonarda  v.  Phcenix 
Assurance  Co.  of  London,  2  Rob.  La.  181.     1842. 

§  3.  Under  policy  of  insurance  upon  a  house,  with  a 
condition  that  in  case  of  loss  tlie  assurer  may  either  rein- 
state the  building,  or  pay  the  amount  of  the  loss  as  soon 
as  proved,  rent  fur  the  period  occupied  in  rebuilding  or 
repairing  cannot  be  recovered  as  part  of  the  indemnity  to 
be  assured.  Such  rent  forms  a  distinct  insurable  interest. 
Leonarda  v.  Phcenix  Assurance  Co.  of  London,  2  Rob. 
La.  131.     1842. 

§  4.  Insurance  against  fire  does  not  cover  consequen- 
tial damages  from  loss  of  occupancy  while  the  buildings 
are  under  repair,  nor  loss  of  profits  that  might  have  been 
made  by  occupant  by  his  trade,  nor  wages  of  servants 
which  occupant  had  to  pay,  though,  in  consequence  of  the 
fire  he  could  not  employ  them.  Menzies  v.  N^orth  British 
Ins.  Co.  9  Cases  in  the  Court  of  Sessions,  N.  S.  G04.     1847. 

§  5.  The  assured  .cannot  recover  consequential  dam- 
ages ;  that  the  only  loss  or  damage  insured  against,  are 
those  happening  by  fire,  and  if  the  company  neglect  to 
repair  or  make  good  the  same  to  the  assured,  the  only 
compensation  to  which  he  is  entitled,  is  the  actual  loss  by 
fire,  and  interest  on  that  sum  from  the  time  it  was  due. 
Elmaker  v.  Franklin  Ins.  Co.  5  Penn.  St.  183.     1847. 

§  6.  On  an  insurance  against  loss  or  damage  l)y  fire 
on, a  building  simply,  and  its  injury  or  destruction  by  the 
peiil  insured  against,  the  assured  cannot  recover  for  his 
loss  occasioned  by  the  interruption  or  destruction  of  his 
business  carried  on  in  such  building,  nor  for  any  gains  or 
profits  which  were  morally  certain  to  inure  to  him  if  it 
had  remained  uninjured  to  the  exj^iration  of  his  policy. 
Niblo  V.  North  American  Ins.  Co,  1  Sandf.  N.  Y.  551. 
1848. 


^ 


CONSTRUCTION. 

§  ] .  The  order  of  a  mayor  to  blow  up  a  building  to 
prevent  the  spread  of  a  conflagration,  though  an  illegal 
exercise  of  power,  is  not  an  "  usurped  power"  within  the 
meaning  of  that  term  in  the  policy.  The  "  usurped  power" 
provided  in  for  a  policy  means  '•  an  usurpation  of  the 
power  of  the  government,"  and  not  a  mere  excess  of  juris- 
diction by  a  lawful  magistrate.  City  Fire  Ins.  Co.  v.  Cor- 
lies,  21  Wend.  N.  Y.  307.     1839. 

§  2.  In  construing  a  ]iolicy,  a  particular  description, 
which  is  clearly  false,  will  be  rejected  in  order  to  give 
effect  to  other  descriptive  Avords,  when  such  words  are 
sufficient  to  define  the  building  intended  to  be  described. 
In  such  a  case  the  false  description  may  be  rejected  as  sur- 
plusage. Heath  V.  Franklin  Ins.  Co.  1  Cush.  Mass.  257. 
1848. 

§  3.  Where  policy  was  issued  on  a  brick  l)uilding, 
described  as  follows :  "  with  a  composition  roof,  occupied 
by  several  tenants,  and  connected  by  doors  with  the  ad- 
joining building,  situate  at  the  corner  of  Charles  street 
and  Western  aveiuie,  in  Boston.  A  cabinet  maker's  shop 
is  in  the  building ;"  Ileld^  that  the  words  "  situate  at  the 
corner  of  Charles  street  and  .Western  avenue,  in  Boston," 
applied  to  the  Imilding  insured,  rather  than  to  the  build- 
ing adjoining  the  one  insured.  Heath  v.  Franklin  Ins.  Co. 
1  tJush.  Mass.  257.     1848. 

§  4.  The  insurance  of  the  plaintiffs  was  expressed  in 
the  policy  to  be  "  on  their  paper  mill  and  permanent  fix- 
tures, $1,200  ;  on  their  machinery,  $800,  on  condition  that 
the  applicants  take  all  risk  from  cotton  waste,  situata  as 
described  in  their  aj^plication."  Held.,  that  the  clause  "on * 
condition  that  the  applicants  take  all  risk  from  cotton 
waste,"  did  not  constitute  a  condition  in  its  legal  sense ; 
but  was  to  be  regarded  as  a  proviso,  expressing  the  inten- 
tion of  the  defendants  not  to  insure  agamst  the  risk  of  fire 
originating  in  cotton  waste,  nor  to  pay  a  loss*  caused  b 
fire  thus  originating.  If  the  company  claim  that  the  lost, 
was  not  within  the  policy,  because  of  this  proviso,  it  is  for 


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CONSTRUCTION. 


them  to  allege  and  prove  it.     Kingsley  v.  New 
Mut.  Fire  Ins.  Co.  8  Cush.  Mass.  393.     1851. 

§  5.  Where  policy  provided  that  "  if  the  ii 
his  assigns  shall  hereafter  make  any  other  insura 
Held^  that  the  word  assigns  referred  only  to  one 
acquired  an  interest  in  the  property  insured,  and 
policy  assigned  to  him,  with  the  consent  of  the 
Holbrook  v.  American  Ins.  Co.  1  Curtis  C.  C.  I 
1852. 

§  6.  Where  the  by-laws  prohibited  the  insu 
altering  the  building,  and  provided  against  any 
of  risk,  by  act  of  assured ;  Held^  that  the  words  " 
and  "  assured,"  applied  to  the  party  whose  inte 
originally  insured,  and  not  to  a  lessee  under  him, 
party  to  v^'i.om,  in  case  of  loss,  the  policy  was  m 
able,  feai;  .•  ^rj  v.  Mechanics'  Mutual  Fire  Ins 
Cush.  Mass.  o4i.     1853. 


r. 


T'v  answer  to  the  question  in  apj 
"  whether  the  lamps  used  in  the  woolen  factory  w 
or  covered  ? "  the  reply  was  "  covered."  It  appeal 
an  open  lamp  was  commonly  used  to  light  u 
Held^  that  the  question  referred  to  lamps  that  wer 
ally  used,  and  not  to  the  lamp  used  for  lighting  i 
and  that  there  Was,  therefore,  no  misrepresentatior 
ard  Ins.  Co.  v.  Bruner,  23  Penn.  St.  50.     1854. 

§  8.  A  policy  issued  to  M.  and  assigned  tc 
collateral  security,  provided  that,  "  if  the  insur 
neglect  for  the  space  of  ten  days,  when  personal! 
upon,  or  after  notice  in  writing,  to  pay  any  ass 
the  risk  of  the  company  on  the  policy  shall  be  su 
uAtil  the  same  is  paid."  Held,,  1st,  that  a  failure 
ply  with  this  provision  would  be  a  eood  defens 
action  on  the  policy;  and  2d,  that  ^q  notice  o 
ment  was  properly  given  to  M.,  the  original  insi 
less  it  appeared  that  W.,  the  assis^nee,  had  giver 
deposit  note,  or  assumed  the  liability  for  the  pay 
assessments,  in  which  case  W.,  and  not  M.,  sh 
notified.  Bowditch  Mut.  Fire  Ins.  Co.  v.  Wii 
Gray,  Mass.  415.     1855. 


DTION. 

Kingsley  v.  New  England 
48.  393.     1851. 

led  that  "  if  the  insured  or 
e  any  other  insurance,"  &c. ; 
ferred  only  to  one  who  had 
perty  insured,  and  had  the 
ae  consent  of  the  company. 
.  1  Curtis  C.  C.  U.  S.  193. 

prohibited  the  insured  from 
vided  against  any  increase 
Id,  that  the  words ""  insured" 
J  party  whose  interest  was 
a  lessee  under  him,  nor  to  a 
,  the  policy  was  made  pay- 
s' Mutual  Fire  Ins.  Co.  12 

3  question  in  application, 
be  woolen  factory  were  open 
•overed."  It  appearing  that 
ly  used  to  light  up  with; 
id  to  lamps  that  were  habitu- 
used  for  lighting  up  with, 
o  misrepresentation.  How- 
St.  50.     1854. 

,^.  and  assigned  to  W.,  as 
that,  "  if  the  insured  shall 
lys,  when  personally  called 
ig,  to  pay  any  assessment, 
policy  shall  be  suspended 
1st,  that  a  failure  to  com- 
be a  good  defense  to  an 
that  the  notice  of  assess- 
[.,  the  original  insured,  un- 
jassignee,  had  given  a  new 
f  ability  for  the  payment  of 
and  not  M.,  should  be 
Ins.   Co.  V.  Winslow,  3 


CONSTRUCr/ON. 


183 


§  9.  When  policy  makes  su:>'t^  and  representa- 
tions warranties,  the  court  w'll  not  extend  the  effect  of 
any  statement  theiein  to  the  prejudice  of  the  assured. 
Sayles  V.  North  Western  Ins.  'Co.  2  Curtis,  C.  C.  U.  S. 
610.     1856. 

§  10.  In  application,  in  reply  to  questions  as  to  dis- 
tance of  other  buildings,  assured  answered,:  "  House  and 
wood-house  connected.  No  other  buildings  within  four 
rods,  except  the  ice-house."  It  appeared  in  evidence  that 
in  rear  of  the  ice-house  was  a  small  building,  three  and 
half  feet  high  in  rear,  and  six  feet  high  in  front,  divided 
by  a  partition  of  boards,  and  called  a  "  hog-house "  and 
"hen-house."  Held,  that  they  were  not  buildings  within 
meaning  of  the  application,  and  evidence  as  to  the  increase 
of  risk  from  them,  was  not  competent.  White  v.  Mutual 
Fire  Assurance  Co.  8  Gray,  Mass.  566.     1857. 

§  11.  A  policy  of  insurance,  in  respect  to  the  rules  by 
which  it  is  to  be  construed,  and  the  principles  by  which 
it  is  to  be  governed,  does  not  differ  from  other  written 
mercantile  contracts.  It  is  a  contract  of  indemnity,  and 
the  right  to  that  indemnity,  vested  by  the  contract,  can 
be  taken  away  only  on  principles  alike  applicable  to  other 
instruments  of  that  character.  Miller  v.  Wescem  Farmers' 
Mut.  Ins.  Co.  1  Handy,  Ohio,  208.     1854. 

§  12.  In  an  application  for  insurance,  which  provided 
that  questions  not  answered  should  be  construed  most 
favoraibly  to  the  risk,  the  applicant  left  unanswered  a 
q^uestion  whether  there  was  any  livery-stable  in  the  vi- 
cinity. In  an  action  on  the  policy  of  which  this  applica- 
tion was  made  part ;  Held,  that  the  jurj-,  if  there  was  a 
livery-stable  in  the  vicinity  at  the  time  of  the  application, 
were  to  determine  what  was  the  meaning  of  the  question, 
and  of  the  word  "  vicinity ;"  and  whether  there  was  a' 
livery-stable  in  that  vicinity,  having  reference  to  the 
situation  of  the  building  in  which  the  property  insured 
was  situated,  the  situation  of  other  buildings,  and  the 
locality,  as  ascertained  from  the  contract  and  evidence. 
Haley  v.  Dorchester  Mut.  Fire  Ins.  Co.  12  Gray,  Mass. 
545.     1859. 

§  13.     An  indorsement  on  a  policy  of  receipt  of  an 


184 


CONSTRUCTION. 


I 


additional  premium  for  "  carpenter's  risk  "  in  extending  a 
state-room  adjacent  to  the  building  in  which  the  property 
insured  was  situated,  cannot  be  construed  into  any  en- 
gagement to  insure  goods  in  the  extended  store-room, 
although  a  portion  of  the  building  originally  insured  was 
removed,  and  its  place  occupied  by  the  extended  store- 
room. Lycoming  County  Ins.  Co.  v.  Updegraff,  40  Penn. 
St.  311.     1861. 

§  14.  The  law  of  the  relation  between  insurers  and 
the  assured  is  the  policy  of  insurance,  with  all  its  clauses, 
conditions,  and  stipulations,  by  which  their  mutual  rights 
and  liabilities  are  defined  and  measured.  "West  Branch 
Ins.  Co.  V.  Helfpnstein,  40  Penn.  St.  289.     1861. 

§  15.  Where  a  policy  is  entirely  consistent  with  the 
terms  of  the  application,  free  from  ambiguity,  and  suscep- 
tible of  a  consistent  construction  in  all  its  parts,  although 
there  be  a  mistake  in  the  insurance  efltected  not  attributa- 
ble to  the  insurer,  the  court  will  not  look  beyond  the 
terms  of  the  policy  in  ascertaining  its  meaning  end  legal 
effect.    Baltimore  Fire  Ins.  Co.  v.  Loney,  20  Md.  20.    1862. 

§  16.  For  a  proper  understanding  of  the  rights  and 
obligations  of  the  parties  to  an  insurance  effected  by  a 
mutual  insurance  company,  the  charter  of  the  company,  a 
policy  issued  by  it,  and  the  conditions  annexed  thereto, 
must  be  read  together.  Hyatt  v.  Wait,  37  Barb.  N.  Y. 
29.     1862. 

§  17.  A  vote  by  the  directors  of  an  insurance  com- 
pany, indefinitely  to  postpone  the  subject  of  a  loss,  will 
be  construed  as  a  refusal  to  allow  anything  on  account  of 
it.    Patrick  V.  Farmers'  Ins.  Co.  43  N.  H.  621.    1862. 

§  18.  A  clause  in  a  policy  of  ihsurance,  that  it  should 
"  cease  at  and  from  the  time  the  property  hereby  insured 
shall  be  levied  on  or  taken  into  possession  or  custody,  un- 
der any  proceeding  at  law  or  equity,"  is  to  be  construed 
as  meaning  an  actual  levy  and  change  of  possession  under 
it.  A  mere  notice  of  levy  by  the  officer  charged  therewith, 
to  the^  defendants  at  their  store,  without  his  taking  the 
goods  insured  into  possession  or  custody,  though  good  as  a 


CONSTRUCTION. 


185 


of 


I 


levy,  will  not  defeat  the  policy.     Commonwealtli  Ins.  Co. 
V.  Berger,  42  Penn.  St.  285.     1862. 

§  19.  Ambiguous  words  in  a  policy  of  insurance  may 
be  construed  by  extrinsic  evidence  of  accompanying  cir- 
cumstances and  the  usages  of  the  business  in  which  the 
property  insured  was  employed.  New  York  Belting  & 
Packing  Co.  v.  Washington  Fire  Ins.  Co.  10  Bosw.  ^.  Y. 
428.     1863. 

§  20.  Under  the  usual  provision  in  a  policy  of  insur- 
ance, that  the  conditions  annexed  are  "  to  be  resorted  to 
in  order  to  explain  the  rights  and  obligations  of  the  par- 
ties thereto,  in  all  cases  not  herein  otherwise  specially 
provided  for,"  such  conditions  do  not  define  the  rights  and 
obligations  of  the  parties  under  any  contingency  provided 
for  in  the  body  of  the  policy.  Hence,  where  a  clause  in 
the  body  of  the  policy  provides  that  the  insurance  shall 
be  suspended  during  any  increase  of  the  risk  from  speci- 
fied causes,  and  the  conditions  annexed  provide  that  the 
policy  shall  become  void  by  any  increase  of  thie  risk,  an 
increase  of  risk,  such  as  is  specified  in  the  clause  in  the 
body  of  the  policy,  does  not  avoid  but  merely  suspends 
the  policy.  Mayor,  &c.  of  N.  Y.  v.  Hamilton  Fire  Ins. 
Co.  10  Bosw.  N.  Y.  537.     1863. 

§  21.  A  policy  of  insurance  upon  a  two-story  factory, 
with  attic  and  basement,  boutained  a  provision  that  there 
should  be  "  water  on  each  floor,  with  hose."  It  appeared 
that  the  factory  was  provided  with  a  steam  pump  in  an 
adjoining  building  and  a  force-pump  in  the  basement,  con- 
nected with  a  water-pipe  passing  through  the  two  storifes 
above  to  a  tank  in  the  attic,  which  was  so  constructed 
that  its  ovei-flow  would  flood  the  attic  floor,  that  hose  was 
kept  upon  the  premises,  attached  to  couplings  to  such 
water-pipe  in  the  first  and  second  stories,  by  means  of 
which  and  the  force-pump  water  could  be  thrown  upon 
those  floors  and  into  the  basement,  by  the  steam-pump, 
and  that,  according  to  the  usage  of  the  "  factory  parlance," 
neither  the  attic  nor  the  basement  were  spoken  of  as 
"  floors."  Ileldf  that  the  recmireraent  of  the  policy  as  to 
water  was  complied  with.  Nev  York  Belting  &  Packing 
Co.  V.  Washington  Fire  Ins.  Co.  10  Bosw.  N.  Y.  428.    1863. 


li 


186 


CONSTRUCTION. 


§  22.  A  clause  in  a  fire  policy  which  provided  that  if 
gunpowder  or  other  articles  subject  to  legal  restrictions 
should  be  kept  in  greater  quantities,  or  in  a  different  man- 
ner, than  was  provided  by  law,  the  policy  should  be  void. 
Held^  to  have  reference  only  to  articles  of  an  intrinsically 
dangerous  nature,  as  liable  to  cause  injury  accidentally  or 
by  carelessness,  and  not  to  refer  to  liquors,  the  traffic 
in  which  was  made  illegal  by  statute.  Niagara  Fire  Ins. 
Co.  v.  De  Graff,  12  Mich.  124.     1863. 

§  23.  A  condition  in  a  policy  of  insurance  that  it 
should  cease  from  the  time  that  the  property  insured 
should  be  "  levied  on  or  taken  into  possession  or  cus- 
tody, under  an  execution  or  other  proceeding  at  law  or 
equity,"  does  not  apply  to  a  wrongful  levy,  made  upon 
the  property  as  belonging  to  another  person  than  the  in- 
sured. Philadelphia  Fire  «fe  Life  Ins.  Co.  v.  Mills,  44 
Penn.  St.  241.     1863. 

§  24.  From  the  answer  to  a  question  in  an  applica- 
tion, that  the  factory  insured  is  "  worked  u^^aally  "  certain 
specified  hours  in  the  daytime  "  in  the  sur  ner,"  and  cer- 
tain specified  hours  "  in  the  winter — short  time  now,"  it 
may  be  inferred  that  it  was  expected  at  times  the  factory 
would  run  nights.  North  Berwick  Co.  v.  New  England 
F.  &  M.  Ins.  Co.  52  Me.  386.     1864. 

§  25.  Conditions  and  provisos  in  policies  of  insur- 
ance are  to  be  construed  strictly  against  the  under- 
writers, as  they  tend  to  narrow  the  range  and  limit  the 
force  of  the  principal  obligation.  Hoffman  v.  -/Etna  Fire 
Ins.  Co.  32  N.  Y.  405.     1865. 

§  26.  Policies  of  insurance  are  to  be  considered  and 
construed  as  a  whole,  and  particular  clauses  or  passages 
are  not  to  be  wrested  from  their  context  so  as  to  destroy 
the  unity  of  the  contract  and  create  conflict  where  there 
should  be  agreement ;  but  one  part  is  to  be  elucidated  by 
the  other,  so  as  to  reconcile  them,  if  practicable,  to  one 
common  intent  or  design,  present  to  the  minds  of  the  con- 
tracting parties.  Merchants'  Ins.  Co.  v.  Edmond,  Daven- 
port «fe  Co.  17  Gratt.  Va.  138.     1866. 

§  27.    Where  the  underwriters,  have  left  their  design 


CONSTBUCTION. 


187 


•e 


e 


doubtful  by  using  obscure  language,  the  construction  will 
be  most  unfavorable  to  them.  Merrick  v.  Germania  Fire 
Ins.  Co.  54  Penn.  St.  277.     1867. 

§  28.  A  policy,  like  other  contracts,  is  liable  to  be 
reformed  for  accident  and  mistake,  or  set  aside  for  fraud ; 
latent  ambiguities  are  explainable,  and  terms  of  art  de- 
finable, by  extrinsic  evidence ;  but  it  is  not  otherwise  an 
exception  to  the  rule  that  its  terms  must  stand,  unless, 
for  some  of  the  reasons  mentioned,  it  may  be  moved  from 
the  precise  terms  written.  Weisenberger  v.  Harmony  F. 
&  M.  Ins.  Co.  56  Pa.  St.  442.     1867. 

8  29.  A  certificate,  that  F.  is  insured,  subject  to  the 
conditions  of  policy  No.  12,261,  on  certain  goods,  both  par- 
ties knowing  this  policy  is  not  yet  made,  is  to  be  governed 
by  the  uniform  custom  of  the  company,  with  reference  to 
the  terms  in  like  policies,  and  a  blank  policy  is  admissible 
in  evidence.    Home  Ins.  Co.  v.  Favorite,  46  111.  263.    1 867. 

§  30.  Per  Hay,  J. — ^That  where  the  standard  of  in- 
telligence necessary  to  understand  conditions  is  elevated 
by  their  being  printed  in  fine  t^^pe,  and  in  terms  not  un- 
derstood by  orr.inary  capacity,  it  must  be  expected  that 
courts  will  lower  the  tests  of  diligence  exacted  from  as- 
sured in  complying  with  the  conditions.  Keller  v.  Equi- 
table Fire  Ins.  Co.  28  Ind.  170.     1867. 

§  31.  A  policy  against  fire  upon  an  unfinished  vessel,. 
"  while  finishing  at  the  wharf,"  and  never  afloat  for  a  voy- 
age, must  be  regarded,  in  the  absence  of  express  agree- 
ment, as  a  fire  risk  and  not  a  marine  insurance,  although 
entered  on  the  company's  marine  docket,  and  the  incidents 
of  salvage,  abandonment,  ifec,  cannot  therefore  apply. 
Eureka  Ins.  Co.  v.  Robinson,  56  Pa.  St.  256.     1867. 

§  32.  The  policy  required  that  if  the  building  iu' 
sured  was  to  be  used  as  "  mills  or  manufactories  of  any 
kind,"  permission  should  be  expressed  on  the  policy. 
Held,  by  "  mill  or  manufactory  "  is  meant  what  common 
usage  recognizes  as  such,  a  mill  not  being  a  place  where 
something  might  be  ground,  nor  a  manufactory  where 
something  may  be  made  by  hand  or  machinery ;  its  princi- 
pal design  must  be  such  use.     A  tenant  who  kept  hay^ 


188 


CONSTRUCTION. 


produce,  &c.,  by  i^erQiissioii,  gave  these  uji,  and  kept 
broom-corn  and  made  brooms  by  hand,  has  not  forfeited 
his  policy.  In  cases  of  doubtful  signification,  the  mean- 
ing most  favorable  to  the  assured  is  to  be  adopted.  Frank- 
lin Fire  Ins.  Co.  v.  Brock,  57  Pa.  St.  74.     1868. 

§  33.  Two  adjoining  houses  were  insured  by  the  owner 
in  a  company  at  the  same  time  but  in  separate  policies, 
as  was  required  by  the  company  in  cases  of  buildings  not 
on  the  same  lot.  HeMj  that  each  policy  was  a  distinct 
contract,  and  that  one  is  not  affected  by  a  prohibited  use 
of  the  other  building,  though  the  fire  originated  in  the 
latter.  Franklin  Fire  Ins.  Co.  v.  Brock,  57  Pa.  St.  74. 
1868. 

§  34.  Construction  of,  and  principles  governing  a 
policy,  do  not  differ  from  other  mercantile  contracts,  but 
conditions  and  provisions  in  them  are  to  be  construed 
strictly  against  the  underwriters.  Aurora  Fire  Ins.  Co.  v. 
Eddy,  49  111.  106.     1868. 

§  35.  Policy  on  machinery,  consisting  of  cards,  pick- 
ers, shafting,  &c.,  all  contained  in  the  first  story  of  a  four- 
story  and  basement  brick  building.  The  pickers  were  all 
in  a  one-story  brick  building,  joining  anglewise,  and  built 
into  the  main  building,  entering  from  it  through  a  frame 
shed,  the  floors  on  the  same  level ;  seeming  to  one  going 
through  like  the  same  building,  or  as  from  a  house  into  a 
kitchen.  Ifeldy  the  picker  room  was  intended  to  be  treated 
as  part  of  the  first  story.  Meadowcraft  v.  Standard  Fire 
Ins.  Co.  61  Pa.  St.  91.     1869. 

§  36.  Plaintiff,  having  a  policy  on  his  ^oods  in  a  store, 
desiring  to  move  them  to  another  fetore,  applied  to  the  com- 
pany to  have  "th©  policy  transferred  to  cover  goods  in  the 
new  building,"  as  they  were  to  be  moved  that  day.  The 
company  indorsed  the  policy, "  transferred  to  cover  similar 
property"  in  the  new  building,  which  was  not  seen  by 
plaintiff,  the  policy  remaining  in  the  company's  hands. 
Held,  the  object  was  to  continue  the  insurance  after  re- 
moval, and  a  loss  having  occurred  before  removal,  the  com- 
pany was  still  liable.  The  terras  of  the  transfer  had  not 
been  assented  to  or  delivered  so  as  to  bind  the  plaintiff. 


CONSUMMATION  OF  CONTRACT. 


189 


'I 


Kniizze  v.  American  Exch.  F.  Ins.  Co.  2  Hand  (N.  Y.)  412. 
1869. 

§  37.  Clause  forbidding  agents  to  take  risks  on  "  dis- 
tilleries and  steam  saw-mills ;"  Held,  to  apply  only  to  such 
risks  in  operation,  not  to  unused  buildings,  tnougn  erected 
for  such  purpose,  ^tna  Ins.  Co.  v.  Maguire,  51  111.  342. 
1869. 

§  38.  That  when  insurance  companies  wish  to  insert 
limitations,  it  would  be  better  to  employ  type  large  enough 
to  arrest  attention.  (The  clause  criticised  was  in  nonpweu.) 
Insurance  Co.  v.  Slaughter,  12  Wallace,  404.    1870. 

§  39.  Clause  that  "  the  above  premises  are  privileged 
to  be  occupied  as  hide,  fat  melting,"  <fec ,  houses,  and  for 
other  €xt/ra  hazardous  purposes.  In  the  classification  these 
occupations  were  not  in  the  extra  hazardous  clause,  but 
were  included  in  a  general  clause  of  the  speGially  hazard- 
ous, being  the  most  dangerous  class  of  all.  Held,  constni- 
ing  the  patent  ambiguity  as  the  grantee  understood  it,  and 
most  strongly  in  his  favor,  that  any  other  occupation  was 
privileeed  of  the  same  class  as  those  specified,  to  wit :  the 
specially  hazardous.  Reynolds  v.  Commerce  F.  Ins.  Co.  of 
N.  Y.  47  N.  Y.  597.    1872. 

Bee  Alienation,  §  86, 92, 93.  Application,  25,  61,  64,  68.  Assignment,  63. 
By-laws  and  Conditions,  1.  Camphene,  4.  Description  of  Property  Insured, 
27.  Dividends,  6.  Encumbrance,\  4,  50,  55.  Evidence,  91.  Insurable  In- 
terest, 51.  Interest  in  Policy,  36,  59.  Other  Insurance,  130,  132.  Parol 
Contract,  22.  Payment  of  Premium,  129.  Preliminary  Proof,  66, 81.  Ques- 
tions for  Court  and  Jury,  23.  Renewal  of  Policy,  13,  14.  Responsibility  of 
Assured  for  Acts  of  Others,  8.  Risk,  22,  23,  50,  51.  Storing  and  Keeping,. 
21,  22,  28,  24.  Taxation,  15.  Title,  63,  71.  Use  and  Occupation,  7, 14,  2i. 
Warranty  and  Representation,  53.  What  Property  is  Covered  by  Policy,  10, 
17,  25,  35,  87,  38.    Written  Portion  of  Policy,  9,  10. 


lot 

Iff. 


CONSUMMATION   OF   CONTRACT. 

§  I.  S.,  desirous  to  insure  his  wire  mill,  applied  for 
£2,000,  in  the  Phcenix  of  London,  through  an  agent  in 
Edinburgh,  and  for  £3,000,  in  North  British  Insurance 
Company.    The  agent  of  the  Phoenix,  not  knowing  what 


190 


CONSUMMATION  OF  CONTRACT. 


premium  to  charge,  referred  to  the  London  directory ;  and 
the  officers  of  the  other  company  told  S.  that  they  would 
take  the  risk  and  charge  the  same  premium  as  the  rhcenix, 
and  that  S.  might  consider  his  mill  insured ;  and  the  risk 
was  entered  on  their  books,  leaving  blank  for  premium. 
The  fire  occurred  before  any  conclusion  was  come  to  as  to 
the  premium  to  be  charged.  Held^  by  a  divided  court, 
that  the  contract  was  incomplete,  and  that  S.  could  not 
recover.  Christie  v.  North  British  Ins.  Co. .  3  Cases  in 
Court  of  Sessions,  360.     1825. 

§  2.    The  defendant,  a  New  York  insurance  company, 
in  1818,  appointed  R.  "  surveyor  of  buildings  and  goods 
oflfered  to  be  insured  in  Savannah,"  Georgia.    In  April, 
1819,  R  wrote  to  the  secretary  of  the  company  that  little 
could  be  done   in  the  way  of  insuring,  unless  he  was 
furnished  with  blank  policies,  ready  signed,  or  unless  his 
receipt  for  premiums  was  binding  on  the  company  until 
the  policies  could  be  obtained  from  the  office.    The  secre- 
tary replied  that  "  the  directors  are  aware  of  the  difficulty 
of  making  insurance  at  a  distance,  and  will  obviate  it  as 
far  as  consistent  with  the  principle  they  had  adopted, 
which  was  that  no  insurance  shall  be  binding  until  the 
premium  is  received  at  their  office  in  New  York."    The 
president  of  the  company  about  the  same  time  wrote  to  R. 
as  follows :  "  All  insurances  that  you  may  agree  to  make, 
and  for  which  such  premiums  as  you  may  deem  proper 
shall  be  actually  paid,  and  shall  be  received  here,  the  office 
will  consider  as  inuring  at  the  time  of  the  payment  to  you; 
so  that  in  case  of  accident  between  such  time  of  payment 
and  the  receipt  of  the  money  here,  the  company  will  in- 
demnify such  loss;   provided,  however,  the  office  shall 
recognize  the  rate  of  premium  which  you  shall  charge, 
and  shall  be  otherwise  satisfied  with  the  risk."    The  com- 
pany issued  many  policies,  dating  the  same  back  to  the 
time  R.  received  the  premium.    January  5,  1820,  R.  exe- 
cuted to  complainant  a  receipt,  signed  by  himself  as  agent, 
for  $106.25,  for  insuring  $5,000,  on  his   stock  of  dry 
goods,  <fec.    The  rate  of  premium  charged  was  within  the 
usual  rate  of  the  company  on  that  class  of  risks.    The 
goods  were  consumed  by  fire  on  January  11.     R.  not 
sending  forward  the  premium,  and  intimating  that  the 


CONSUMMATION  OF  CONTEAOT. 


191 


company  would  not  consider  themselves  bound  by  what 
had  been  done,  complainant  tendered  the  premium  to  the 
president,  filed  his  preliminary  proofs,  and  demanded  his 
policy  and  payment ;  and  upon  refusal  by  the  company, 
brought  his  bill  in  chancery  for  relief.  Held^  that  R.  was 
not  authorized  to  bind  the  company  to  a  contract  of  in- 
surance ;  that  R.'s  contracts  had  no  force  till  they  were 
assented  to  in  New  York ;  and  that,  as  in  this  case,  the 
company  never  gave  their  assent,  no  binding  contract  ever 
existed,  and  the  bill  must  be  dismissed.  Perkins  v.  Wash- 
ington Ins.  Co.  6  Johns.  Ch.  N.  Y.  485.  1822.  But  see 
section  3,  ^08t. 

§  3.  The  case  of  Perkins  v.  "Washington  Insurance 
Company,  6  Johns.  Ch.  N.  Y.  485,  of  which  a  statement  is 
given  in  the  precedin?;^  section,  was  appealed ;  and  in  the 
Court  of  Errors  it  ./as  held,  that,  under  the  authority 
conferred  by  the  letter  from  the  president,  the  company 
could  not  refuse  to  ratify,  but  were  bound  by  the  con- 
tracts of  their  agent,  R,  where  the  premium  was  paid  or 
tendered  in  New  York,  and  where  the  risks  and  rates  con- 
formed to  the  rules  and  regulations  of  the  company  in 
other  and  similar  cases.  They  could  not  arbitrarily  reject 
the  risk ;  nor  could  they  refuse  to  execute  a  policy  be- 
cause a  loss  intervened.  The  decision  of  the  Coiui;  below 
was  reversed,  and  the  company  decreed  to  pay  the  loss. 
Perkins  v.  Washington  In^.  Co.  4  Cow.  N.  Y.  645.     1825. 

§  4.  One  H.  made  application  to  the  secretary  of  an 
insurance  company  for  insurance  in  behalf  of  plaintiff. 
The  secretary  made  out  and  gave  to  H.  an  application  and 
premium  note  for  plaintiff,  who,  with  H.,  lived  in  another 
town,  to  sign,  and  told  H.  when  they  were  signed,  to  re- 
turn them  to  him  and  he  would  return  a  policy  of  same 
date.  The  note  and  application  were  not  signed  by,  or 
presented  to,  plaintiff,  till  thirteen  days  afterwards ;  and 
were  not  returned  by  H.,  to  the  secretary,  till  six  days 
after  the  signing ;  and  during  these  six  days  the  fire  oc- 
curred. Held^  that  the  contract  was  inconmlete,  and  that 
plaintiff  could  not  recover.  Thayer  v.  Middlesex  Mut. 
Fire  Ins.  Co.  10  Pick.  Mass.  326.     1830. 

§  5.    Where  an  agreement  for  insurance  had  been 


^\ 


S^ 


192 


CONSUJIMATION  OF  CONTKACT. 


made  on  the  30th  of  March,  and  the  premium  paid  on 
that  diy,  but  the  policy  was  not  made  out  until  some 
d  ays  afterwards,  and  in  the  mean  time  the  property  was 
destroyed,  when  the  policy  of  the  same  date  as  the  day 
on  which  the  premium  had  been  paid,  was  mtide  out  and 
delivered ;  Hml^  that  the  policy  took  effect,  by  relation, 
from  the  day  of  its  date.  Lightbody  v.  North  American 
Ins.  Co.  23  Wend.  N.  Y.  18.     1840. 

§  6.  The  president  of  an  insurance  company  made 
an  agreement  by  parol,  with  a  firm  owning  some  chemical 
works,  for  the  insurance  of  five  thousand  dollars,  on  their 
property,  to  be  apportioned  as  follows:  three  thousand 
dollars  on  stock,  one  thousand  dollars  on  fixtures,  and  one 
thousand  dollars  on  buildings;  and  told  applicants  that 
the  insurance  should  commence  on  that  day.  Upon  the 
return  of  the  president  to  the  oflice  of  the  company,  he 
made  a  memorandum  of  the  agreement  upoi:  the  books 
of  the  company,  but  no  policy  was  made  out,  as  a  few 
days  afterwards  the  applicants  notified  the  company  that 
they  wished  to  have  the  amounts  insured,  differently  ap- 
portioned. No  premium  was  paid,  nor  was  any  charge 
made  by  the  company  against  applicants  on  the  books  of 
the  company.  Whilst  matters  were  in  this  condition,  the 
company  several  times  requested  applicants  to  call,  and 
fix  up  the  amounts  as  they  desired  them,  but  they  neg- 
lected to  do  po — whereupon  the  companv  notified  them, 
that  if  they  did  not  call  and  complete  the  arrangement, 
they  (the  company)  would  not  hold  themselves  liable  for 
any  loss.  A  few  days  afterwards  the  property  was 
destroyed,  but  applicants  had  not  then  called,  as  requested. 
Held^  that  there  had  been  no  contract  consummated,  and 
applicants  could  not  recover.  Sanford  v.  Trust  Fire  Ins. 
Co.  11  Paige  Ch.  N.  Y.  547.     1845. 

§  7.  An  application  for  insurance  on  an  academy  was 
made,  by  one  interested,  to  an  agent  of  a  mutual  insur- 
ance company,  "  authorized  to  take  applications,  receive 
premium  note,  and  the  cash  payments,  and  forward  to  the 
company,"  and  the  cash  premium  was  paid,  and  note 
given  for  balance  to  such  agent,  who  forwarded  same  to 
the  company ;  and  company  agreed  to  issue  policy,  when 
certain  alterations  were  made,  and  the  order  for  insurance 


L 


OONSUMMATION  OF  CONTBAGT. 


193 


.te 
to 


was  authorized  by  the  trustees  of  the  building.  The 
alterations  were  made,  and  consent  of  trustees  obtained, 
and  agent  was  notified  of  the  same,  and  requested  to  call 
and  see  the  consent,  and  to  examine  the  building,  which 
he  did  not  do.  In  the  mean  time  the  building  was  de- 
stroyed; and  the  court  held,  that  the  risk  commenced 
from  the  time  of  the  notice  that  the  conditions  were  per. 
formed.  Hamilton  v.  Lycoming  Ins.  Co.  5  Penn.  St.  339. 
1847. 

§  8.  Where  a  company  offered  to  insure  on  certain 
terms  by  letter,  and  assured  replied  accepting  the  terms 
and  inclosing  the  premium ;  the  contract  held  to  be  con- 
summated  from  date  of  mailing  the  acceptance,  though 
property  was  destroyed  before  receipt  of  same  by  the  com- 
pany. Tayloe  v.  Merchants'  Fire  Ins.  Co.  9  How.  U.  S. 
390.    1850. 

§  9.  "Where  an  agent,  only  authorized  to  receive  and 
forward  applications,  on  which  the  covrnjuuy  were  to  issue 
policies  "  if  approved,"  and  their  pririi  'd  rules  stated  that 
policy  should  "  bear  date  with  applicat!i>Ti,"  and  such 
agent  was  also  authorized  to  receive  the  premium  note 
and  cash  percentage  thereon,  and  plaintiff  applied  for  in- 
surance on  the  27th  May,  paid  cash  percentage  and  policy 
fee,  and  gave  premium  note  to  such  agent,  who  mailed  the 
same  on  the  day  following,  and  company  did  not  receive 
it  until  2d  June,  and  on  1st  June  the  property  was  de- 
stroyed, whereupon  company  refused  to  issue  policy,  and 
tendered  back  tne  premium  to  plaintiff,  who  refused  to 
receive  the  same,  and  suit  for  policy  was  brought  in 
equity ;  Ifeldy  that  the  contract  was  consummated  on  27th 
May,  and  the  company  were  liable  for  the  loss.  JTeld^  also, 
that  the  reservation  on  the  part  of  the  company  of  the 
right  of  "  approval,"  did  not  give  them  the  arbitrary  right 
of  setting  aside  any  contract,  nowever  fair,  made  by  their 
agent,  but  only  in  such  cases  where  the  agent  had  been 
imposed  upon,  or  where  the  contract  made  by  agent  would 
operate  as  a  fraud  on  the  rights  of  the  company.  Palm  v. 
Medina  Ins.  Co.  20  Ohio,  529.     1851. 

§  10.    After  the  approval  of  the  application  and  the 
payment  or  security  of  the  premium,  the  appplicant  is  in- 
18    * 


194 


CONSUMMATION  OF  CONTRACT. 


-f 


sured  and  can  recover  for  his  loss,  although  no  policy  may 
have  been  made  out.  Goodall  v.  New  England  Mut.  Fire 
Ins.  Co.  5  Fost.  N.  H.  169.     1852. 

§  11.  A  secretary  of  a  mutual  insurance  company,  by 
request  of  assured  to  have  other  property  covered  by  his 
policy,  sent  by  mail  the  following  indorsement  or  memo- 
randum, with  instructions  to  assured  to  attach  it  to  his 
policy:  "an  additional  representation  having  been  re- 
ceived this  day,  and  attached  to  the  original  application  of 
G.,  agent.  No.  2323,  the  directors  consent  to  the  continu- 
ance of  this  policy,  and  may  cover  new  machinery, 
wheels,  drum  and  flume.  J.  E.  Lang,  Sec'y."  In  a  suit 
upon  the  policy  for  the  recovery  of  loss  by  fire  to  the 
property  covered  by  original  policy,  and  also  to  property 
specified  in  the  memorandum ;  Hetd^  first,  that  the  memo- 
randum being  attached  to  the  policy,  the  whole  might  be 
set  forth  in  one  count  as  upon  one  policy ;  at  least  such  a 
declaration  was  sufficient  after  verdict ;  second,  that  the 
memorandum  was  competent  evidence  to  show  that  the 
defendants  contracted  to  insure  and  did  insure  the  new 
machinery,  wheels,  drum  and  flume ;  and  as  the  4th  sec- 
tion of  the  by-laws  (which  provided  that  the  directors 
may,  in  their  discretion,  grant  certificates  of  insurance  be- 
fore the  papers  are  formally  made  out),  sanctioned  the 
issuing  of  this  certificate  or  memorandum,  the  new  ma- 
chinery was  covered  by  the  contract  with  defendants. 
Goodall  V.  New  England  Fire  Ins.  Co.  5  Fost.  N.  H.  169. 
1852. 

§  12.  Policy  made  out  at  request  of  defendant,  but 
he  refused  to  receive  iii,  or  pay  premium,  or  sign  note; 
Heldy  that  there  was  no  contract  and  no  liability,  and  in 
action  on  premium  note,  against  defendant,  the  company 
could  not  recover.  Real  Estate  Mut.  Ins.  Co.  v.  Roesle,  1 
Gray,  Mass.  336.     1854. 

§  13.  Where  an  agent,  only  authorized  "  to  receive  and 
forward  applications  to  the  company,  receive  the  note, 
and  cash  percentage  thereon,"  gave  a  certificate  to  an  appli- 
cant as  follows :  "This  certifies  that  C.  &  J.  have  made  ap- 
plication to  the  N.  York  Union  Mutual  Insurance  Company, 
for  insurance  upon  property  specified  in  said  application," 


CONSUMMATION  OP  CONTR  iOT. 


195 


1 


be. 


y» 


<fec.,  "  and  have  given  therefor  a  premium  note  of  $ — — , 
and  paid  cash  premium  $25.  If  not  approved  by  the 
directors,  money^  to  be  refunded ; "  Ifeldj  that  this  was  not 
a  contract  bindmg  on  insurance  company,  but  only  a  pro-  ^/  . 
posal  for  a  contract.  Kor  was  an  acceptance  of  the  prop-  ' 
osition  for  insurance  to  be  presumed  merely  from  the 
lapse  of  six  months,  without  a  reply  to  the  proposition  for 
insurance.  Insurance  Co.  v.  Johnson,  23  Penn.  St.  92. 
1854. 

§  14.  Where  policy  and  application  were  made  out, 
and  reported  by  the  agents  to  company  in  October,  but 
premium  was  not  paid  or  policy  delivered  till  December 
followinff,  and,  at  latter  date,  an  indorsement  was  made 
upon  policy  by  agents,  changing  the  contract;  as  between 
insurers  and  assured,  the  contract  must  be  treated  as  com- 
mencing in  December.  Gloucester  v.  Howard  Ins.  Co.  5 
Gray,  Mass.  497.     1855. 

§  15.  A  contract  arises  when  an  overt  act  is  done,  in- 
tended to  signify  an  acceptance  of  a  proposition,  whether 
such  overt  act  comes  to  the  knowledge  of  the  proposer  or 
not ;  and  unless  a  proposition  is  withdrawn,  it  is  consid- 
ered  as  pending  until  accepted  or  rejected,  provided  the 
answer  is  given  in  reasonable  time.  The  acceptance  of  a 
proposal  to  insure  for  the  premium  offered  is  the  comple- 
tion of  the  negotiation ;  and,  after  the  policy  has  been 
forwarded  to  tne  agent  o^  the  company  for  delivery,  the 
contract  cannot  be  rescinded  without  the  consent  of  the 
parhr  insured.  Hallock  v.  Commercial  Ins.  Co.  2  Dutch. 
N.  J;  268.     1856. 

§  16.  An  agent,  in  arrears  in  his  account  with  the 
company,  forwarded  an  application  for  insurance  with  the 
premium,  $11  25,  paid  by  applicant.  The  company  placed 
the  money  to  the  agent's  credit,  and  returned  the  applica-  - 
tion,  saying  that  it  must  be  put  in  the  "  Manufacturers' " 
department,  and  could  not  be  taken  at  less  than  3  per  cent., 
or  premium,  $30,  which,  if  agreed  to  by  applicant,  and  the 
money  sent  with  application  by  agent,  the  policy  would 
be  issued.  The  company  then  called  the  attention  of  the 
agent  to  the  state  of  his  account,  and  said  they  would  not 
write  any  more  policies  until  it  was  made  good.    The 


i   If 

•I 


11 


196 


CONSUMMATION  OF  CONTRACT. 


agent  showed  the  company's  letter  only  as  far  as  that  part 
of  it  relating  to  the  rate,  and  applicant  at  once  paid  the 
remainder  of  the  premium,  $18  75,  making  the  amount 
asked  by  the  company.  This  was  on  the  1st  of  November. 
On  the  2d  of  November,  the  property  was  destroyed  by 
fire,  and  the  money  sent  forward  by  the  agent  on  the  4th  of 
November,  after  tne  fire;  and  the  company,  having  heard 
of  the  fire  in  Lockport,  though  not  of  the  plaintiff's  loss, 
acknowledged  receipt  of  the  money,  but  declined  issuing 
any  policy,  -fl^^  that  when  the  plaintiff  accepted  the 
company's  terms,  and  paid  the  premium  to  their  agent,  the 
contract  was  fiilly  consummated,  and  the  company  were 
liabl?  for  the  loss  to  the  amount  of  the  insurance,  although 
the  money  was  not  forwarded  to  the  company  until  after 
the  fire.  Held^  further,  that  as  the  latter  part  of  the  com- 
pany's letter  to  the  agent,  as  to  the  balance  due  from  him 
to  the  company,  had  not  been  shown  to  the  assured,  he 
could  not  be  affected  by  the  omission  of  the  agent  to  com- 
ply with  the  condition  annexed  to  the  letter  of  the  presi- 
dent. Chase  v.  Hamilton  Mut.  Ins.  Co.  22  Barb.  N.  Y. 
627.     1856. 

§  17.  Boyd,  a  general  agent,  and  Moody,  a  local 
agent,  of  the  defendant  company,  went  to  the  residence  of 
the  plaintiff,  Bragdon,  on  the  7th  of  October,  1853,  and, 
after  certain  negotiations  with  him,  applications  were  pre- 
pared by  Boyd,  upon  request  to  be  insured  from  that 
time,  and  signed  by  plaintiff  in  a  manner  satisfactory  to 
Boyd,  who  said  the  policies  would  be  made  without 
delay.  Moody,  the  local  agent,  told  Bragdon  that  it  made 
no  difference  whether  he  paid  the  cash  premium  at  that 
time,  or  when  he  should  take  the  policies,  and  he  did  not 
pay  it.  Bragdon  also  asked  agents  for  a  copy  of  the  by- 
laws, and  was  told  that  they  nad  none  with  them,  but 
that  he  would  be  furnished  with  a  copy  on  the  policies. 
There  were  no  rules  or  regulations  of  the  company  made 
known  to  plaintiff.  It  was  also  understood  between  the 
agents  and  plaintiff,  that  the  policies  would  be  made  at 
once  (as  the  president  of  the  company  was  in  the  adjoin- 
ing town),  and  be  left  with  Fellows  and  Moody,  at  Water- 
ville,  and  no  time  was  fixed  when  Bragdon  should  take 
them.    The  policies  were  made  and  signed,  and  put  into 


CONSUMMATION  OF  OONTBACT. 


197 


the  hands  of  Fellows  before  the  loss ;  but  Fellows  was 
afterwards  ordered  by  the  president  not  to  deliver  them, 
and  they  were  subsequently  taken  back.  On  the  10th  of 
October  plaintiff  tendered  the  premium  In  gold  to  Fel- 
lows, who  said  he  was  also  agent  of  the  company,  and,  as 
he  declined  to  receive  it,  plaintiff  requested  him  to  keep 
it,  which  he  did,  until  the  commencement  of  suit,  when  it 
wg-s  deposited  with  the  clerk  of  the  court.  Fellows  at 
the  same  time  declined  to  deliver  the  policies.  The  poli- 
cies provided  in  Article  8,  "Each  person  shall  pay,  upon 
the  execution  of  his  policy  and  before  its  delivery,  the 
premium  thereon,"  &c.  Article  6,  "That  no  insurance 
shall  take  effect  until  the  application  has  been  approved, 
<fec.,  and  cash  premium  paid,  &c."  And  last  part  of  Arti- 
cle 12, "No  insurance  agent  or  broker  forwarding  applica- 
tions to  this  office,  is  authorized  to  bind  the  company  in 
any  case  whateyer."  In  a  suit  in  the  above  case,  after 
the  evidence  was  in,  the  court  directed  a  nonsuit,  to 
which  plaintiff  excepted,  and  upon  appeal  the  exception 
was  sustained,  and  new  trial  granted,  upon  the  ground, 
that  from  the  foregoing  facts,  the  jury  might  find  that 
the  right  of  the  company  to  receive  the  cash  premiums 
before  the  delivery  of  the  policies,  had  been  waived; 
and  if  so,  the  policies  were  effectual  from  the  time  they 
were  left  with  Fellows  and  Moody  for  deliverer,  notwith- 
standing Bragdon,  the  plaintiff,  had  not  received-  them. 
Bragdon  v.  Appleton  Mut.  Fire  Ins.  Co.  42  Me.  259. 
1856. 

§  18.  Where  assured  and  his  counsel,  after  a  loss  by 
fire,  applied  to  the  secretary  of  the  company  for  the  policy, 
and  he  stated  "that  he  had  either  sent  the  policy  to  the 
assured  by  mail,  or  by  private  baud ;  he  thought  by  mail;" 
Heldy  that  such  declaration  was  conclusive  evidence  against 
the  company,  upon  the  question  of  the  execution  and  legal 
delivery  of  the  instrument;  and  they  cculd  not,  upon 
the  trial,  repudiate  the  representationp  of  the  secretary. 
Sussex  County  Mut.  Ins.  Co.  v.  Woodruff,  2  Dutch.  N.  J. 
641.    1847. 

§  19.  Application  was,  on  the  2d  of  March,  made  to 
B.,  agent  of  the  company  to  receive  applications  and 


198 


consuhhahon  of  oontbaot. 


premiums  and  forward  to  the  company  for  the  insurance 
of  a  building.  B.  forwarded  the  application  on  the  8d  of 
March,  and  the  company  held  it  under  advisement  until 
they  procured  a  map  referred  to  by  the  agent,  giving  the 
location  of  the  risk.  The  application  stated  the  insurance 
to  be  from  the  10th  of  March,  at  which  time  another 
policy  applicant  had  on  the  property  would  expire.  On 
the  13th  of  March,  at  12  o'clock,  the  company  made  out 
policy,  and  mailed  it  to  agent  for  delivery,  and  on  the 
15th  of  March  telegraphed  agent  "  to  return  policy  when 
it  arrived,  as  risk  not  taken  when  burnt;"  and  the  policy 
was  returned  when  it  came.  On  the  13th  of  March,  a  fire 
originated,  wholly  consuming  the  property  before  8  o'clock 
A.M.,  or  several  hours  before  the  policy  had  been  made 
out  at  the  office  of  the  company.  The  policy,  in  accord- 
ance with  the  application,  was  expressed  to  be  an  insurance 
from  the  10th  of  March.  Hela^  1st,  that. the  acceptance 
of  the  proposition  to  insure  completed  the  contract  be- 
tween the  insurer  and  insured,  and,  after  the  policy  had 
been  sent  by  mail  to  the  agent  of  the  company  for  delivery, 
the  contract  could  not  be  rescinded  without  the  consent  of 
the  party  insured ;  2d,  that  in  the  absence  of  fraud  or  con- 
cealment, on  the  part  of  the  assured,  the  company  were  ad 
much  bound  for  the  loss  as  if  it  had  occurred  after  the 
delivery  of  the  policy.  Hallock  v.  Commercial  Ins.  Co.  2 
Dutch.  N.  J.  268.  1866.  Affirmed,  3  Dutch.  N.  J.  645. 
Court  Appeals,  1858. 

§  20.  On  the  28th  of  March,  1857,  the  agent  of  the 
company  called  at  the  house  of  assured,  and  proposed  to 
insure  it.  A  written  application  was  made  and  signed  by 
the  assured,  and  a  receipt  given  to  him  by  the  agent,  ac- 
knowledging the  payment  of  the  premium.  The  premium 
was  not  actually  paid  at  that  time,  but  it  was  agreed  that 
the  assured  might  send  it  to  the  agent  at  his  convenience. 
The  assured  was  also  told  that  his  contract  of  insurance 
was  complete  from  the  date  of  the  receipt,  and  that  his 
policy  would  soon  be  ready,  &c.  The  receipt  was  dated 
on  tne  said  28th  of  March,  1857 ;  the  house  was  burned 
on  the  7th  of  April  thereafter,  and  the  furniture  wholly 
or  partially  destroyed.  The  premium  was  sent  to  the 
agent  immediately  after  the  fire,  and  he  accepted  the^ 


CONSUMMATION  OP  CONTEAOT. 


ie» 


money,  nA  knowing  of  the  fire.  The  company  made  out 
and  sent  a  policy  to  the  agent,  but  having  heard  of  the 
fire,  directed  the  agent  not  to  deliver  it  to  the  assured, 
but  to  refund  the  premium.  The  agent  declined  to  de- 
liver the  policjr,  and  tendered  the  premium  to  the  assured, 
which  he  declined  to  receive,  and .  brought  an  action  for 
a  specific  performance  of  the  contract  of  insurance. 
JTeldj  that  when  the  company  accepted  the  premium,  and 
forwarded  the  policy  to  its  a^ent,  the  agreement  to  in- 
sure was  complete,  and  ratified  as  of  the  28th  of  March, 
1857,  and  the  policy  became  the  property  of  the  assured. 
Whitaker  v.  Farmers'  Union  Ins.  Co.  29  Barb.  N.  Y.  312. 
1859. 

§  21.  B.,an  agent  to  receive  and  forward  applications 
and  receive  the  cash  percentage  thereon,  forwarded  to  de- 
fendants an  application  of  A.  for  insurance,  fixing  the  rate 
at  nine  per  cent  for  six  years,  and  at  same  time  inclosed 
a  blank  premium  note  signed  by  A.  to  be  filled  up  by  the 
company.  The  latter  required  a  resurvey  of  the  premises, 
and  upon  the  receipt  of  it,  made  out  a  policy  bearing  date 
the  20th  of  January,  1855,  at  the  rate  of  fifteen  per  cent, 
for  six  years,  and  sent  it  to  B.  with  instructions  to  return 
without  charge  if  not  satisfactory  to  A.  At  time  the  pol- 
icy reached  the  agency,  B.  was  absent,  and  was  also  absent 
more  or  less  from  that  time  until  the  fire,  which  occurred 
on  the  8th  March,  1855.  During  that  time  A.  asked  B.  if 
the  policy  had  come,  but  B.'*  could  not  say  whether  he  had 
received  it  or  not,  and  was  not  certain  that  he  had  not  de- 
livered it  to  A.  No  premium  had  ever  been  paid  to  the 
company,  or  tender  of  premium  made  by  A.,  other  than 
the  blank  premium  note  sent  with  the  first  application. 
The  charter  of  the  company  declared  that  the  applicant 
for  insurance  "  shall,  before  he  receives  his  policy,  deposit 
his  promissory  note,"  <fec.,  "  a  part  not  exceeding  ten  per 
cent,  of  which  shall  be  immediately  paid."  The  by-laws - 
provided  that "  policies  shall  take  effect  at  12  o'clock,  noon, 
on  the  day  of  approval  at  the  office  of  the  company,  and 
shall  be  binding  thereafter,  provided  the  premium  or  ten- 
percentage  on  the  premium  note  has  been  paid,"  and  that 
"  ten  per  cent,  on  the  premium  note  shall  be  paid  in  all 
cases  and  indorsed  on  the  policy."    Ifeld,  that  the  policy 


Ji 


200 


CONSUMMATION  OF  CONTRACT. 


5 


was  not  binding  on  the  company,  first  because  there  had 
been  no  acceptance  of  it  by  A.,  and  second,  because  the 
giving  of  the  note  and  payment  of  the  prescribed  ten  per 
cent,  were  conditions  precedent  to  taking  effect  of  policy. 
Wallingford  v.  Home  Mut.  Fire  Ins.  Co.  30  Mo.  46. 
1860. 

§  22.  To  constitute  a  valid  contract  of  insurance,  the 
minds  of  the  parties  must  meet  as  to  the  premises  and  the 
risk ;  as  to  the  amount  insured ;  as  to  the  time  the  risk 
shall  continue ;  and  as  to  the  premium.  Baptist  Church 
V.  Brooklyn  Fire  Ins.  Co.  28  N.  Y.  153.     1863. 

§  23.  Where  an  agreement  of  insurance  was  made  be- 
tween the  parties  by  their  agents  on  the  20th,  and  on  the 
night  of  the  same  day  the  property  was  destroyed  by  fire ; 
on  the  morning  of  the  21st,  the  policy  was  executed,  de- 
livered, and  received  in  perfect  accordance  with  the  agree- 
ment, both  parties  being  ignorant  of  the  fire ;  Hdd^  a 
valid  and  binding  policy.  City  of  Davenport  v.  Peoria 
Marine  and  Fire  Ins.  Co.  17  Iowa,  276.    1864. 

§  24.  A  party  insured  on  his  stock  of  goods,  being 
about  to  remove  them  to  another  store,  applied  jy  his 
agent,  to  the  insurers  to  procure  from  them  an  ordinary 
transfer  of  the  policy  on  the  goods,  from  the  old  to  the 
new  store.  The  secretary  of  the  insurers  told  the  agent, 
who  described  the  property  to  him,  to  "  let  the  policy  re- 
main as  it  was,"  and  when  it  expired,  "  it  (meaning  the 
premium)  will  be  less  than  now."  The  agent,  who  left 
the  policy  with  him,  promised  to  call  for  it  later  in  the 
day,  but  failed  to  do  so.  Before  the  goods  were  removed 
from  the  original  store,  a  loss  by  fire  occurred ;  Ileld^  that 
there  was  no  valid  agreement  varying  or  displacing  that 
contained  in  the  policy ;  and  that  the  insurers  were  liable. 
Kunzze  v.  American  Exchange  Fire  Ins.  Co.  2  Robert.  N. 
Y.  443.     1864. 

§  25.    A  condition  in  a  policy  of  insurance  that; 
instrument  shall  not  be  bindm^^f  until  actual  payme:it    ■"'. 
the  premium,  may  be  waived  bv  a  general  agent  of  t.i.> 
company,  by  delivering  the  policy  without  exacting  pre- 
payment.   Wood  V.  Poughkeepsie  Mut.  Ins.  Co.  32  N.  Y. 
619.     1866. 


CONSUMMATION  OF  CONTRACT. 


201 


§  26.  An  application  for  insurance  is  filed  and  the 
company  executes  a  policy,  which  was  agreed  to  take  effect 
that  day  at  noon;  both  policy  and  application  remain- 
ing in  the  company's  hands.  Tne  buildings  having  burnt, 
the  insured  went  to  the  company,  who  were  still  ignorant 
of  the  loss,  paid  the  premium,  and  received  the  policy.  A 
condition  therein  was  that  the  insurance  takes  effect  on  the 
day  of  issue  provided  the  premium  has  been  paid,  and  not 
otherwise.  Iield,  on  the  acceptance  of  the  terms  the  minds 
of  both  parties  had  met,  and  the  contract  became  binding 
on  each.  Keim  v.  Home  Mut.  F.  &  M.  Ins.  Co.  of  St. 
Louis,  42  Mo.  38.     1867. 

§  27.  Application  provided  that  the  policy  should 
take  effect  on  the  day  the  application  should  be  approved, 
and  the  assured  gave  the  agent  his  premium  note,  to  be 
returned  in  case  the  policy  was  not  issued.  A  loss  oc- 
curred. ITeldj  if  the  application  is  not  approved  there  is 
no  contract  of  insurance.  The  application  was  sent  to  the 
general  agents  and  rejected  by  them ;  then  forwarded,  by 
the  local  agent's  request,  to  the  home  office,  where  it  was 
also  rejected  and  returned,  being  eighteen  days  after  its 
receipt  at  the  home  office  and  the  fire  occurred  two  days 
afterwards.  Jleld,  delay  cannot  usually,  nor  in  this  case, 
make  a  contract.  Winnesheik  Ins.  Co.  v.  Holzgrafe,  53 
111.  516.    1870. 

§  28.  The  agent  of  a  company,  having  sent  his  own 
application,  on  receipt  of  the  policy  in  answer,  entered  on 
the  company's  books  the  charge  against  himself  for  pre^ 
mium.  Jletd,  though  mere  assent  is  not  a  sufficient  accept- 
ance  of  a  contract,  yet  a  letter  of  acceptance  is  not  neces- 
sary ;  any  appropriate  act  binding  the  acceptor  is  enough. 
As  the  agent  s  remittances  were  sent  only  at  the  end  of 
each  month,  his  crediting  the  company  with  the  premium 
is  understood  to  be  a  payment.  Lungstrass  v.  German  - 
Ins.  Co.  48  Mo.  201.     1871. 


See  Application,  §  00,  68.    Increase  of  Risk,  40.   Parol  Contract,  21.  Pay- 
ment of  Premium,  1,  37.    Place  of  Making  Contract,  3. 


V« 


CONTRIBUTION. 

§  1.  Upon  a  double  insurance  the  insured  is  not  en- 
titled to  two  satisfactions ;  but,  upon  the  first  action,  he 
may  recover  the  whole  sum  insured,  and  may  leave  the  de- 
fendant therein  to  recover  a  ratable  satisfaction  from  the 
other  insurer.     Newby  v.  Reed,  1  W.  Black.  416.     1760. 

§  2.  Where  several  policies  on  same  subject,  each  con- 
tain the  pro  rata  clause  of  payment  in  case  of  loss,  and 
one  pay  more  than  their  share,  they  are  not  entitled  to 
contribution  from  the  others.  But,  if  only  one  contains 
the  clause,  and  others,  without  the  clause,  pay  more  than 
their  share,  they  will  be  entitled  to  contribution  from  pol- 
icy containing  the  clause.  Hence  that  company,  whose 
policy  contains  the  clause,  will  have  a  defense  j^ro  tanto  in. 
an  action  upon  it.  If  underwriters,  sued  on  such  policy, 
seek  to  defend  on  the  ground  that  other  policies  without 
the  clause  have  paid  more  than  their  ratable  share,  it  lies 
upon  them  to  prove  affirmatively,  that  the  other  policies 
did  not  contain  this  clause.  It,  being  a  matter  of  defense, 
will  not  be  presumed.  Lucas  v.  Jefferson  Ins.  Co.  6  Cowen, 
N.  Y.  625.    1827. 

§  3.  In  this  case  the  defendants  insured  $2,000 ;  the 
entire  insurance  on  the  property  was  $8,000 ;  the  jury 
were  instructed,  if  they  found  for  plaintiff,  to  assess  the 
damages  at  one-fouith  of  the  entire  loss,  provided  the  loss 
did  not  exceed  the  entire  sum  insured.  Harris  v.  Protec- 
tion Ins.  Co.  Wright,  Ohio,  548.     1834. 

§  4.  Where,  in  the  declaration  of  assured,  and  in  the 
policy  given  in  evidence,  it  was  stated  that  the  property 
destroyed  was  covered  hj  another  policy,  in  anotner  com- 
pany, to  the  amouiit  of  six  hundred  dollars,  and  the  jury 
rendered  a  verdict,  without  making  any  abatement  for 
such  other  insurance ;  Held,  that  there  must  be  a  new 
trial,  unless  the  assured  would  remit  upon  the  record  the 
excess  of  the  damages.  Mechanics'  Fire  Ins.  Co.  v.  Nichols, 
1  Harrison,  N.  J.  410.     1838. 

§  5.  One  policy  was  for  $1,000,  on  fixtures,  and 
$3,000  on  stock ;  another  for  $5,000  on  stock  and  fixtures ; 


CONTRIBUTION. 


203 


both  policies  contained  a  clause  providing  that  in  case  of 
any  other  insurance  on  the  property,  the  company  would 
only  be  liable  to  pay  in  proportion  as  the  sum  insured  by 
them  bore  to  the  whole  amount  insured  on  the  property. 
In  an  action  upon  the  first  policy ;  Held^  that  the  first  pol- 
icy must  be  regarded  as  two  separate  policies  of  $1,000, 
on  fixtures,  and  $8,000,  on  stock,  and  that  the  second  in- 
surance of  $5,000,  on  stock  and  fixtures  as  one  parcel,  was 
not  a  double  insurance  on  the  same  subject,  and  that  as- 
sured might  recover,  therefore,  on  the  first  policy,  just  as 
if  the  latter  had  never  existed.  Howard  Ins.  Co.  '7.  r>crib- 
ner,  5Hm,  N.Y.  298.     1843. 

§  6.  A  re-insurer  is  liable  for  the  full  amount  of  loss, 
within  his  contract,  although  a  clause  in  his  policy  pro- 
vides, "  that  in  case  there  were  other  insurance  prior  or 
subsequent,  the  re-insured  should  be  entitled  to  receive 
only  a  proportionate  part,"  <fec. ;  such  clause  refers  to  a 
case  of  other  re-insurance.  Mutual  Safety  Ins.  Co.  v. 
Hone,  2  Comst.  N.  Y.  235.    1849. 

§  7.  Several  policies  of  insurance  were  taken  out  on 
one  building — additions  were  then  made,  and  insurance 
taken  on  new  and  old.  In  an  action  upon  policy  covering 
the  old ;  Held^  that  the  amount  of  loss  upon  the  new 
should  be  first  deducted  from  policies  covering  both,  be- 
fore their  aggregate  amount  is  brought  into  calculation  by 
which  the  proportionate  liability  of  each  is  to  be  ascer- 
tained. Cromie  v.  Kentucky  &,  Lexington  Mut.  Ins.  Co. 
15  B.  Monr.  Ky.  432.     1854. 

§  8.  An  insurance  company  may  be  compelled  to  pay 
the  entire  loss  on  a  policy,  within  the  amount  insured,  un- 
less limited  by  its  conditions ;  but  will  be  entitled  to  sue 
for  and  recover  proportionate  amounts  of  other  companies 
insuring  against  the  same  loss.  Peoria  Marine  <fe  Fire  Ins^ 
Co.  V.  Lewis,  18  HI.  553.     1857. 

§  9.  Policy  in  -/Etna  for  $4,000  on  stock  of  drugs, 
medicines,  <fec.,  and  policy  of  $2,000,  in  Dubuque  Mutual 
on  same  stock.  One  condition  of  ^tna  policy  provided, 
"  That  in  case  of  any  other  insurance  upon  the  property 
hereby  insured,  the  assured  shall  not  in  case  of  loss  or 


I 


204 


CONTRIBUTION. 


: 


damage,  be  entitled  to  demand  or  recover  of  this  company 
any  greater  portion  of  the  loss  or  damages  sustained  than 
the  amount  hereby  insured  shall  bear  to  the  whole  amount 
insured  on  said  property."  Held^  that  the  Dubuque  Mu- 
tual policy,  being  void  by  reason  of  the  subsequent  insur- 
ance in  the  ^tna  without  notice  to  or  consent  of  Dubuque 
Mutual,  the  ^tna  was  liable  for  the  whole  loss.  Hygum 
V.  ^tna  Ins.  Co.  11  Iowa,  21.     1860. 

§  10.  A  policy  was  taken  for  $3,000,  "  additional  to 
$9,000,  insured  in  other  offices,  and  $8,000  to  be  insured 
in  other  offices."  At  the  time  of  the  fire  there  was  only 
$11,000  additional.  The  policy  contained  the  usual  stip- 
ulation that,  in  case' of  loss,  it  would  share  the  same  in 
proportion  to  its  share  of  the  whole  insurance.  It  was 
claimed  that  there  was  a  contract  or  warranty  that  there 
should  be  $17,000  of  other  insurance,  at  least  so  far  as  to 
furnish  a  basis  of  calculation  of  the  amount  recoverable ; 
but  the  court  held  that  such  was  not  the  true  f  Dustruction, 
and  that  the  company  must  bear  the  loss  in  proportion  to 
its  share  of  the  whole  insurance  actually  eflfected.  Rich- 
mondville  Union  Seminary  v.  Hamilton  Mut.  Ins.  Co.  14 
Oray,  Mass.  459.     1860. 

§  1 1.  Policy  of  insurance  was  for  "  $2,000,  being  not 
more  than  three-fourths  the  value  of  the  property  insured 
on  his  stock  in  trade,  bein^  mostly  chamber  furniture  in 
sets,  and  other  articles  usually  kept  by  furniture  dealers," 
and  contained  this  statement :  "  other  insurance  of  $3,000 
subsists,  with  liberty  to  have  and  make  further  insurance 
to  an  amount — ."  The  policy  was  made  subject  to  the 
conditions  and  limitations  expressed  in  the  by-laws,  one 
of  which  prohibited  a  double  insurance  without  consent 
of  company,  under  penalty  of  forfeiture,  and  provided 
that,  in  case  of  loss  or  damage  to  property  on  which  au- 
thorized double  insurance  did  eidst,  "  this  company  shall 
be  liable  to  pay  only  such  proportion  thereof,  as  the  sum 
insured  by  this  company  bears  to  the  whole  amount  in- 
sured thereon,  such  amoimt  not  to  exceed  three-fourths  of 
the  actual  value  of  the  property  at  the  time  of  the  loss." 
In  reply  to  the  17th  question  in  application:  "Is  there 
any  insurance  upon  the  property  on  which  application  is 
made  for  insurance  ?    LT  so,  what  amount,  and  where  in- 


CONTRIBUTION. 


205 


sured?"  Answer  was  made,  "$1,500:  $1,500."  The  two 
policies  thus  refeiTed  to  by  assured,  were  insurances  only 
upon  his  "  stock  of  furniture,"  and  the  loss  and  damage 
was  $5,917,  of  which  $826  consisted  of  "paints,  oil  and 
varnish,"  which  were  not  covered  by  these  two  policies. 
The  company's  defence  was  that  they  were  only  liable  td 
pay  in  proportion  as  the  sum  insured  by  them  bore  to  the 
whole  amount  insured  thereon,  as  stated  in  the  face  of  the 
policy;  and  that  the  assured,  by  his  recital  of  $3,000 
other  insurance  on  the  property,  was  estopped  from  show- 
ing that  in  fact  it  was  not  all  on  the  same  property ;  but 
Iield^  that  such  recital  in  the  policy  of  other  insurance,  in 
the  absence  of  any  fraudulent  representation,  did  not  af- 
fect the  party  insured,  althoug/i  some  portion  of  the  prop- 
erty insured  should  be  found  not  to  have  been  embraced 
in  any  other  policy ;  and  that  assured  might  recover  the 
whole  amount  of  the  loss  on  property  covered  by  this 
policy  alone,  if  such  loss  did  not  exceed  three-fourths  of  its 
value  at  time  of  loss.  Haley  v.  Dorchester  Mut.  Ins.  Co.  1 
Allen,  Mass.  536.     1861. 

§  12.  Where  property  covered  by  several  policies  of 
insurance  is  destroyed,  the  proportion  of  its  value  to  be 
paid  by  one  underwriter  is  that  which  the  amount  of  his 
policy  bears  to  the  amount  of  all  the  insurance  thereon, 
although  some  of  the  policies  cover  other  property  in  ad- 
dition to  that  destroyed.  >,Blake  v.  Exchange  Mut.  Ins. 
Co.  12  Gray,  Mass.  265.     1858. 

§  13.  The  right  to  contribution  bet'veen  insurers  is 
based  upon  the  concurrence  of  the  policies,  and  it  is  a 
necessary  incident  of  its  existence,  that  the  several  insur- 
ers should  be  bound  with  equal  certainty,  and  in  the  same 
sense  for  the  same  loss.  Baltimore  Fire  Ins.  Co.  v.  Loney, 
20  Md.  20.     1862. 

§  14.  A.  and  B.  were  insured  against  loss  by  fire  by' 
the  defendant  in  the  sum  of  $5,000,  on  merchandise  held 
by  them  for  themselves,  and  on  trust  or  on  commission  for 
account  of  whom  it  may  concern.  They  were  also  insured 
by  the  St.  Louis  Insurance  Company  in  the  sum  of  $4,000, 
on  merchandise  held  in  a  similar  manner,  and  also  on  mer- 
chandise held  "  in  storage,"  which  last  was  not  covered  by 


206 


CONTRIBUTION. 


policy  of   defendant.     Merchandise  of  assured,  to  the 
amount  of  $9,157  75,  was  d.  itroyed  by  fire,  of  which  sum 
$7,470  75  was  covered  by  policy  of  defendant,  and  $1,687 
was  property  held  on  storage,  and  not  covered  by  policy 
of  defendant,  but  included  in  that  issued  by  the  St.  Louis 
1/ompany.    One  condition  of  defendant's  policy  provided 
that :  '*  in  all  cases  of  a  plurality  of  insurances  on  the  same 
subject,  this  company  shall  be  liable  for  such  ratable  pro- 
portion of  the  loss  or  damage  happening  to  the  subject 
insured,  as  the  amount  insured  by  this  company  shall  bear 
to  the  whole  amount  insured  thereon."    The  Court  of  Com- 
mon Pleas  decided  that  the  adjustment  should  be  made 
bj  the  following  proportion:    "as  $9,157  75  (the  total 
value  of  the  goods  lost)  is  to  $4,000  ^amount  of  policy 
covoring  the  goods  *on  storage'),  so  is  $7,470  75   ([the 
value  of  general  merchandise  and  goods  on  commission) 
to  the  value  of  general  merchandise  and  goods  on  com- 
mission covered  by  said  policy,  that    is,   the    sum  of 
$3,263  13,  which  sum  is  the  proportion  of  the  said  policy, 
that  covers  general  merchandise  and  goods  on  commission." 
Then  adding  this  last  sum  thus  ascertained  to  $5,000,  the 
amount  of   defendant's  policy,    and  the  total  amount, 
$8,263  13,  will  be  the  insurance  to  contribute  to  the  loss 
on  general  merchandise  and  goods  on  commission.    Held^ 
that  as  between  the  insurers  the  mode  adopted  by  the 
Court  of  Common  Pleas  was  correct,  if  thereby  the  losses 
sustained  by  the  assured  were  made  good ;  but  as  in  this 
case,  the  assured  would  not  be  fully  indemnified,  another 
plan  must  be  adopted,  to  wit :  the  policy  of  the  St.  Louis 
Company  should  be  first  applied  towards  payment  of  the 
goods  "  in  storage,"  and  the  amount  thus  paid  deducted 
^om  the  amount  of  said  policy,  leaving  only  the  remainder 
to  contribute  with  defendant's  policy  of  $5,000,  on  mer- 
chandise covered  by  both  policies.     Angelrodt  v.  Dela- 
ware Ins.  Co.  Supreme  Court  of  Missouri ;  St.  Louis  County 
Legal  Record  <fe  Advertiser,  May,  1862. 

§  15.  "Where  there  are  several  insurances  on  the  same 
property,  and  the  policies  stipulate  that  each  company 
shall  be  liable  only  for  their  ratable  proportion  of  any  loss, 
if  one  company  pays  more  than  its  just  share  its  remedy  is 
not  against  the  other  companies  for  contribution,  but 


COXnniBRSIGNINO   BY  AGENT. 


207 


axpainst  the  assured.    Fitzsimmons  v.  City  Fire  Ins.  Go.  18 
Wis.  234.     1864. 

§  1 6.  In  a  case  of  double  insurance,  the  policies  are  con- 
sidered as  one ;  and  the  insurers  are  liable  pro  rata^  and 
are  entitled  to  contribution  to  equalize  payments  made  on 
account  of  losses.  Sloat  v.  Royal  Ins.  Co.  4.  Penn.  St.  14. 
1865. 

§  17.  Four  insurance  companies  insured  machinery, 
<fec.  m  buildings  in  a  described  inclosure,  with  the  follow- 
ing condition  annexed  to  their  policies ;  "  If  at  the  happen- 
ing of  any  fire  the  assured  shall  have  insurance  under  a 
floating  policy  or  policies  not  specifi^^  but  covering  goods 
generally  in  various  places,  not  designated,  and  yet  within 
limits  which  include  the  premises  or  property  herein  in- 
sured, such  policy  as  between  the  assured  and  this  com- 
pany shall  be  considered  as  covering  any  excess  of  sound 
value  of  the  subject  insured  beyond  the  amount  covered 
by  the  specific  insurances  thereon ;  and  to  determine  the 
amount  for  which  this  company  is  liable  in  case  of  loss, 
such  floating  policy  shall  be  considered  an  insurance  on 
the  property  to  the  extent  of  such  excess."  Other  insur- 
ance companies  insured  on  specific  property  in  the  same 
inclosure.  Upon  a  loss  happening ;  Ueld^  that  the  liabil- 
ity of  the  four  insurance  companies  was  not  confined  to 
the  excess  of  loss  above  that  covered  by  the  specific  insur- 
ances. They  are  liable  to  contribute  ratably  on  the  pro  - 
erty  insured  in  the  specific  policies  which  was  covered  by 
their  general  policies.  Merrick  v.  Germania  Fire  Ins. 
Co.  54  Penn.  St.  277.    1867. 

See  General  Average,  §  1.    Other  Insurance,  8,  25,  53,  93. 


COUNTERSIGNING  BY  AGENT. 

§  1.  Where  it  is  stipulated  in  a  policy  of  insurance 
"that  it  shall  not  be  valid  until  countersigned  by  the 
agent,"  a  policy  signed  by  "B.  for  the  agent,"  is  void; 
and  a  premium  note  given  by  the  insured  is  also  void. 
Lynn  v.  Burgoyne,  13  B.  Munroe,  Ky.  400.     1850. 

§  2.    The  19th  clause  of  the  6th  William  IV,  ch.  18, 


'  M 


■  • ' 


208 


COVENANTS   TO   INSUEE. 


provided  "  that  any  policy  signed  by  the  president  and 
countersigned  by  the  secretary,  but  not  otherwise,  shall  be 
deemed  valid  and  binding  on  the  company."  Held^  thiat 
a  policy  issued  without  the  president's  name  was  invalid, 
and  that  the  company  could  not  be  directly  sued  upon  it ; 
they  could  be  compelled,  however,  upon  the  defect  being 
noticed,  to  execute  a  valid  policy  of  the  proper  date,  and 
their  by-law  would  estop  them  from  objecting  that  the 
policy  was  not  in  fact  executed  before  the  loss.  The  as- 
sured having  taken  out  a  policy,  thus  unsigned,  and  paid 
a  sum  in  cash,  and  also  a  portion  of  the  premium  note  in 
cash,  tirith  the  full  knowledge  of  the  defect,  cannot  recover 
back  the  premium  so  paid.  Perry  v.  Newcastle  District 
Mut.  Fire  Ins.  Co.  8  Upper  Canada,  Q.  B.  363.    1851. 


COVENANTS  TO  INSURE. 

§  1.  Injunction  against  an  ejectment  for  breach  of 
covenant  to  insure  against  fire,  refused.  Keynolds  v.  Pitt, 
19  Ves.  Jr.  134.     1812. 

§  2.  The  court  will  not  relieve  a  tenant  against 
breach  of  a  covenant  to  insure.  Green  v.  Bridges,  4 
Simons,  96.     1830. 

§  3.  A  covenant  to  insure  against  fire,  premises  which 
are  within  the  "  building  act,"  runs  with  the  land.  Ver- 
non V.  Smith,  3  Barn.  <fe  Adolph.  1.     1821. 

§  4.  Certain  premises  were  leased,  with  covenant  in 
lease  that  the  lessee  should  keep  the  premises  insured,  in 
the  sum  of  £800,  in  some  office  in  Westminster  or  Lon- 
don, and  with  a  right  of  re-entr/  in  case  of  forfeiture; 
and  the  lessee  *  effected  a  policy  on  the  premises,  with  an 
insurance  company  whose  printed  conditions  declared, 
that  the  policy  should  be  for  such  longer  period  as  the 
tenant  should  regularly  pay,  and  the  company  receive  the 
premium,  and  a  space  of  fifteen  days  beyond  the  quar- 
ter days  was  given  for  payment  of  the  premium,  during 
■w^hich  time  the  company  is  liable ;  the  year  expired  on  the 


III 


COVENANTS  TO  INSURE. 


209 


It) 


25tli  March,  1811,  but  the  tenant  did  not  pay  the  pre- 
mium for  renewal  till  the  25th  April  following,  when  the 
company  gave  a  receipt  for  the*  premium,  stating  the  in- 
surance to  be  from  Lady  Day,  1811,  to  Lady  Day,  1812; 
Held^  that  from  the  9th  of  April  to  the  25th,  notwith- 
standing the  company's  receipt,  there  was  no  insurance  on 
the  premises,  and  the  covenant  to  insure  was  broken  ;  and 
the  landlord  was  entitled  to  recover,  under  the  clause  of 
re-entry  in  the  lease.  Doe  d.  Pitt  v.  Shewin,  3  Camp.  N. 
P.  134.     1811. 

§  5.  Where  a  lessee  covenanted  to  keep  the  premises 
insured,  a  neglect  so  to  do  for  fourteen  days  is  a  breach  of 
such  covenant,  and  where  lessee  had  sub-let,  and  the  sub- 
lessee effected  an  insurance  in  his  own  name ;  Held^  that 
lessor  could  not  avail  himself  of  the  insurance  effected  by 
the  sub-lessee,  under  condition  in  covenant  that  such  insur- 
ance money  should  be  applied  to  the  rebuilding  or  repairing 
the  premises,  by  the  sub-tenant,  under  the  lessee's  direc- 
tion— as  there  was  no  privity  between  lessor  and  sub-ten- 
unt.  Keteltas  v.  Coleman,  2  E.  D.  Smith,  N.  Y.  408.  1854. 
Noto  says  this  case  was  affirmed  in  the  court  of  appeals. 

§  6.  Covenant  by  lessee  to  insure  the  premises  in  the 
name  of  the  lessor,  the  insurance  money  to  be  expended 
in  the  erection  of  new  buildings ;  Held^  a  covenant  run- 
ning with  the  land,  and  that  an  action  would  lie  on  it 
against  the  assimiee  of  ^e  lessee. 

Held.,  also,  that  the  measure  of  damages  was  the  value 
of  the  premises  lost  to  the  plaintiff  by  the  defendant's 
neglect  to  insure,  such  value,  not  exceeding  the  sum  in 
which  the  dex^ndant  was  to  have  insured  by  his  covenant ; 
and  that  it  could  make  no  difference  that  on  failure  of  the 
lessee  to  insure,  the  lessor  was  allowed  by  the  lease  to  do 
so,  and  charge  the  premiums  as  rent.  Douglass  v.  Mur- 
phy, 16  Upper  Canada,  Q.  B.  113.     1858. 

§  7.  A  covenant  between  lessor  and  lessee  to  insure, 
when  the  money  realized  in  case  of  loss  is  to  be  expended 
in  re-building  or  repairs,  is  such  a  covenant  as  may  run 
with  the  land;  and  if  assignee  ot  lessee  fails  to  pay  pre- 
miums for  insurance  as  stipulated  in  covenant,  assignee  of 

14 


I 


210 


COVENANTS  TO  rNTSTIRE. 


lessor  may  pay  same,  and  recover  them  from  assignee 
of  lessee.    Masury  v.  Southwonh,  9  Ohio  St.  340.    1859. 

§  8.  At  common  law,  a  promise  for  a  valuable  con- 
sideration to  make  a  poli^  of  msurance  is  valid,  although 
not  in  writing.  Post  v.  JEtna  Ins.  Co.  43  Barb.  N.  Y.  361. 
1864. 

§  9.  Where  A.  a^eed  to  pay  B.  $47.50  as  premium 
for  an  insurance  withm  one  month,  and  B.  agreed  to  de- 
liver within  a  month  an  insurance  policy  to  A.;  Held^ 
that  the  consideration  of  the  stipulation  on  either  side 
was  the  promise  made  by  the  other;  that  either  could 
perform  at  any  time  during  the  month,  and  that  B.  was 
not  bound  to  deliver  the  policy  until  the  end  of  the 
month.  That  no  demand  was  necessary,  and  B.  was  as 
much  bound  to  deliver  the  policy  as  A.  was  to  pay  the 
premium.  Western  Massachusetts  Ins.  Co.  v.  Duflfey,  2 
Kansas,  347.     1864. 

§  10.  The  defendant  had  given  a  bill  of  sale  of  per- 
/sonal  property  as  security  for  a  debt,  and  the  deed  con- 
)  tained  a  covenant  to  insure,  but  no  provision  for  the  ap- 
plication of  the  insurance  money  in  case  of  loss.  The 
property  was  destroyed,  and  the  defendant  became  bank- 
rupt. Held^  that  the  assignee  of  the  \  operty  had  no  lien 
upon  the  insurance  money.  Lees  y,  Wnitely,  Law  Rep. 
2  Eq.  143.     1866. 

For  cases  of  Covenants  to  Insure,  see  also,  Doe  d.  Darlington  v.  Ulph.  13 
Jurist,  276;  18  L.  J.  Q.  B.  106.  PenniaU  v.  Harbcme,  11  Q.  B.  868;  13 
Jurist,  159;  17  L.  J.  Q.  B.  94.  Hey  v.  Wyche,  2  Gale  &  D.  669 ;  12  Law  J. 
N.  S.  88;  6  Jurist,  6S9.  Logan  vi  Hall,  4  C.  B.  698.  Doe  d.  Muston  v. 
Gladwin,  6  Q.  B.  968 ;  Doe  d.  Bridger  v.  Whitehead,  8  Ad.  &  E.  671 ;  8  Nev. 
&  P.  667;  Doe  d.  Pittman  v.  Sutton,  9  Car.  &  P.  706;  Doe  d.  Knight  v. 
Rowe,  2Car.  &  P.  246;  R.  &  M.  843;  Camden  v.  Morton,  2  Eden,  219; 
Amb.  619. 

See  Assignment,  §  36.  Mortgagor  and  Mortgagee,  6  ;  see  Parol  Conf  vact 
and  Enforcement  of'Cont.  for  Pol. 


DAMAGES. 

§  1.    The  building  insured  stood  upon  leased  ground, 
with  a  condition  of  renewal  in  the  lease  or  of  removal  of  the 
buildinff.     Fifteen  days  before  the  expiration  of  the  lease, 
the  building  was  destroyed  by  fire,  the  lease  not  having 
then  been  renewed.      The  evidence   showed    that  the 
building  was  worth  $1,000,  as  it  stood,  but  if  it  were 
necessary  to  remove  it,  would  not  be  worth  over  $200. 
The  insurance  was  for  $800.    The  policy  agreed  to  pay 
the  true  and  actual  value  of  the  property  at  the  time  the 
fire  should  happen.    Held^  1st,  that  the  policy  was  not  a 
valued  policy,  and  that  assured  could  not  recover  any 
greater  satisfaction  for  the  loss  than  the  actual  value  of 
the  building  destroyed;  2d,  that  such  loss  and  damage 
was  to  be  determined,  without  any  reference  to  extraneous 
circumstances,  whereby  the  value  of  the  building  might 
be  increased  or  diminished,  and  that  the  intrinsic  value  of  C 
the  building,  therefore,  as  it  stood  at  time  of  the  fire,  was  ? 
the  true  criterion  for  determining  the  value  of  the  same,  S 
and  for  such  amount,  not  exceeding  the  sum  insured,  the  i 
assured  might  recover.    Laurent  v.  Chatham  Fire  Ins.  , 
Co.  lHall,N.  Y.  41.     1828. 

§  2.  Where  the  policy  agreed  to  make  good  to  the 
assured  all  such  loss  or  damage  as  shall  happen  by  fire  to 
the  property  described) not  exceeding  the  sum  insured; 
Held^  that  the  insurers  were  liable  for  the  entire  loss,  not 
exceeding  amount  insured,  although  the  value  of  the 
goods  was  greater  than  the  sum  insured.  Peddie  v.  Que- 
bec Fire  Ins.  Co.  1  Stuart,  Lower  Canada,  174.    1824. 

§  3.  A  mortgagor,  whose  equity  of  redemption  has 
been  seized  on  execution,  may  recover  the  entire  value  of 
the  building,  not  exceeding  the  sum  insured.  Strong 'v. 
Manufacturers'  Ins.  Co.  10  Pick.  Mass.  40.     1830. 

§  4.  When  machinery  is  insured  for  a  certain  sum, 
and  is  destroyed  by  fire,  it  is  the  actual  value  of  the  prop- 
erty destroyed,  and  not  the  sum  in  the  policy,  which  the 
insured  is  entitled  to  recover ;  and  the  mtrinsic  market- 
able worth  is  the  only  rule  for  estimating  the  value.    Her- 


212 


DAMAGES. 


N 


cules  Ins.  Co.  v.  Hunter,  14  Cases  in  the  Court  ci  Sessions, 
1137.     1836. 

§  5.  The  plaintiff  acquired  by  deed  of  quitclaim  the 
equity  of  redemption  of  certain  premises  on  which  the 
mortgagee  had  entered  for  condition  broken,  and  insured 
for  $1,500,  stated  by  the  policy  to  be  not  more  than  three- 
fourths  the  value  of  the  property — the  land  being  esti- 
mated to  be  worth  $1,000,  the  buildings  $2,050,  and  the 
mortgage  amounting  to  $1,650,  and  the  insurance  being 
taken  with  fiill  knowledge  of  the  premises  and  mortgage. 
Ileld^  that  though  three-fourths  of  the  value  of  the  prem- 
ises, deducting  the  mortgage,  was  much  less  than  that,  the 
plaintiff  was  entitled  to  recover  the  whole  amount  de- 
stroyed by  fire.  Borden  v.  Hingham  Mut.  Ins.  Co.  18  Pick. 
Mass.  523.     1836. 

§  6.  In  this  case  the  preliminary  proofs  as  to  amount 
of  loss  were  confessedly  loose  and  indefinite,  the  books  of 
account  and  other  data  for  forming  an  estimate  having 
been  destroyed  by  fire;  the  court,  therefore,  refused  to 
permit  any  mterest  to  be  calculated  against  the  company 
on  the  amount  of  loss  as  found  by  the  verdict  of  the  jury. 
McLaughlin  v.  Washington  County  Mut.  Ins.  Co.  23 
Wend.  N.  Y.  525.    1840. 

§  7.  An  insurance  to  a  mortgagee  is  an  insurance  of 
his  debt,  and  insurer  is  only  liable  to  the  amount  of  that 
debt ;  but  if  policy,  taken  out  by  mortgagor,  has  been  as- 
signed as  collateral  security  to  the  mortgagee,  the  entire 
loss  may  be  recovered.  Carpenter  v.  Washmgton  Ins.  Co. 
16  Pet.  U.  S.  495.     1842. 

§  8.  The  contract  of  insurance  is  essentially  one  of 
indemnity,  and  this  indemnity  must  be  adjusted  on  the 
principle  of  replacing  the  insured,  as  near  as  may  be,  in 
the  situation  he  was  m  at  the  commencement  of  the  risk. 
The  amount  of  the  insurable  interest  is  the  market  value 
of  the  articles  at  the  time  and  place  of  the  commencement 
of  the  risk,  and  when  they  have  been  purchased  near  that 
time  and  place,  the  cost  to  the  assured  is  the  most  satis- 
factoiy,  though  not  the  only  criterion  of  their  value. 
Marchesseau  v.  Merchants'  Ins.  Co.  1  Bob.  La.  438. 
1842. 


DAMAGES. 


213 


J 


§  9.  Insurance  company  cannot  be  made  to  pay  in- 
terest after  the  sixty  ^ays  stipulated  for  in  the  policy,  if  it 
has  been  prevented  from  so  doing  by  trustee  process. 
Oriental  Bank  v.  Tremont  Ins.  Co.  4  Met.  Mass.  1.     1842. 

§  10.  Where  defendants,  sued  on  a  policy  of  fire  in- 
surance underwritten  by  them,  are  shown  to  have  con- 
sented that  the  property  damaged  by  the  fire  should  be 
sold  at  auction,  the  price  at  which  it  was  sold  is  a  proper 
criterion  by  which  to  estimate  the  damage  of  the  insured. 
Henderson  v.  Western  Marine  &  Fire  Ins.  Co.  10  Kob.  La. 
164.     1845. 


11.  Where  a  mutual  company  has  insured  to  an 
amount  not  exceeding  two-thirds  or  three-fourths  of  the 
value  of  the  property,  the  contract  being  one  of  indemnity, 
the  assured  is  entitled  to  recover  the  amount  of  that  loss, 
if  less  than  the  sum  insured ;  and  if  there  is  a  total  de- 
struction of  the  property,  then  to  the  amount  of  the  policy, 
liscom  V.  Boston  Mut.  Ins.  Co.  9  Met.  Mass.  205. 
1845. 

§  12.  When  goods  insured  against  fire  are  destroyed, 
the  insurer  is  bound  to  pay  their  value  at  the  time  of  the 
loss;  if  damaged  only,  ne  is  bound  for  the  difference  be- 
tween their  value  in  their  sound  and  damaged  condition. 
When  the  goods  are  so  much  damaged  as  not  to  be  sale- 
able in  the  ordinary  mode,  a  fair  sale  at  auction  made  bv 
the  assured,  after  reasoi\able  notice  to  the  insurers,  or  with 
their  knowledge,  may  be  considered  by  a  jury  in  estimat- 
ing the  damage  and  in  ascertaining  the  amount  of  the  in- 
demnity; but  the  price  for  which  such  damaged  goods 
were  sold  at  auction  by  the  assured,  without  notice  to  or 
knowledge  by  the  insurers  of  the  sale,  is  not  sufficient  evi- 
dence of  the  value  of  the  goods  in  their  damaged  condi- 
tion. Hoffman  v.  Western  Marine  &  Fire  Ins.  Co.  1  La. 
An.  216.     1846. 

§  13.  When  a  building  insured  is  totally  destroyed 
by  fire,  the  cost  of  rebuilding  does  not  furnish  the  true 
rule  of  damages.  Under  such  a  rule  the  amount  recov- 
ered would  be  more  than  a  fair  indemnity.  There  is  no 
rule  of  damages  applicable  to  such  cases;  and  where  no 
rule  of  damages  is  established  by  law,  the  jury  are  to  de- 


II 


214 


DAMAGES. 


cide  the  question,  and  to  their  decision  there  can  be  no  le- 
gal exception.  Brinley  v.  National  Ins,  Co.  11  Met.  Mass. 
195.     1846. 

§  14.  Insurance  was  upon  cotton-milPand  machinery. 
Heta^  that  insured  was  entitled  to  recover  only  the  actual 
damage,  which  damage  on  the  machinery  might  be  ascer- 
tained by  estimating  the  cost  of  fitting  up  "  new  "  machin- 
ery in  the  mill  of  a  description  similar  to  that  which  had 
been  destroyed,  and  deducting  from  amount  of  such  cost 
the  diflference  in  value  between  the  machinery  in  the  mill 
as  it  was  immediately  before  it  was  destroyed,  and  the 
"  new  "  machinery  of  a  similar  description  when  fitted  up. 
Vance  v.  Forster,  2  Crawford  &  Dix's  Ct.  Rep.  Irish,  118. 
1841.    Also  noted  in  3  Stephen's  Nisi  Prius,  2084. 

§  15.  "Where  building  was  leased  and  destroyed  by 
fire,  after  lessee  had  insured  it ;  Held^  that  he  could  only 
recover  for  the  value  of  the  tenements  for  occupation, 
subject  to  rent,  and  that  to  determine  that  value  the  ques- 
tion should  be  put  to  the  jury  in  this  shape :  "  How 
much  would  a  stranger  having  no  engagements  or  con- 
tracts pending,  have  given  for  the  unexpired  lease  when 
the  fire  occurred  % "  Niblo  v.  North  American  Ins.  Co.  1 
Sandf.  N.  Y.  551.    1848. 

§  16.  In  fire  policies,  the  insurance  covers  the  entire' 
loss  of  property  by  fire,  if  within  the  limit  of  the  insurance, 
and  no  deduction  is  to  be  made,  because  the  entire  value 
of  the  subject  insured  was  much  greater  than  the  whole 
sum  insured  by  the  policy.  Underhill  v.  Agawame  Mut. 
Ins.  Co.  6  Cush.  Mass.  440.    1850. 

§  17.  Where  the  insurance  companjr  promised  to  pay 
all  losses  within  three  months  and  without  deduction, 
they  cannot  retain  two  per  cent,  a  month  of  premium  note 
for  balance  of  the  term  of  policy;  and  no  custom  per- 
mitted to  be  shown  to  explain  awav  these  plain  require- 
ments of  the  policy.  Swamscot  Machine  Co.  v.  Partridge, 
5  Post.  N.  H.  369.     1852. 

§  18.  In  this  case  the  insurance  was  for  $2,500.  The 
loss  occurred  in  October,  1846.  The  company  were  sum- 
moned as  trustees  the  following  December.    The  directors 


( 


DAMAGES. 


215 


voted  to  allow  $2,000  as  the  amount  of  the  loss,  in  August, 
1847.  The  jury  having  found  that  the  loss  exceeded  the 
amount  of  insurance,  the  court  discuss  the  question  of  in- 
terest, and  lays  down  the  following  rules:  Unless  the 
contract  of  insurance,  expressly  or  by  implication,  pre- 
scribes another  rule,  interest  should  be  computed  on  the 
actual  loss,  from  the  time  when  it  happened.  By  the 
charter  in  this  case,  the  company  were  not  bound  to  pay 
imtil  three  months  after  they  received  notice  of  the  loss ; 
and  under  it,  if  they  settle  and  are  ready  to  pay  a  loss, 
within  the  three  months,  no  interest  can  be  allowed.  In 
this  case,  as  the  company  only  voted  to  allow  $2,000,  when, 
according  to  the  verdict,  the  whole  amount  of  the  policy, 
$2,500,  was  due,  interest  must  be  computed  on  the  balance, 
$500,  from  the  time  of  the  loss.  The  damages  on  a  policy, 
until  they  are  ascertained,  by  agreement  or  otherwise,  are 
unliquidated;  and  therefore  the  trustee  process  did  not 
attach  to  the  $500 ;  nor  to  the  $2,000,  until  the  allowance 
of  that  sum  was  voted ;  and  as  the  directors  made  an  un- 
reasonable delay,  afber  the  expiration  of  the  three  months, 
in  voting  that  allowance,  interest  is  to  be  charged  on  the 
$2,000,  from  the  expiration  of  the  three  months  to  the  date 
of  the  vote  of  allowance.  And, 'further,  as  final  judgment, 
under  the  trustee  process,  was  rendered  for  a  less  sum 
than  $2,000,  interest  is  to  be  charged  on  the  balance,  after 
deducting  the  amount  of  that  judgment  and  costs,  from 
the  date  of  the  judgment.  Nevins  v.  Rockingham  Fire 
Ins.  Co.  5  Fost.  N.  H.  22.     1852. 

§  19.  Where  policy  insured  against  "  all  loss  or  dam- 
age by  fire,"  said  loss  and  damage  to  be  estimated  accord- 
ing to  the  true  and  actual  cash  value  of  the  said  property 
at  the  time  the  same  shall  happen ;  Held^  that  the  assured 
might  recover  the  full  and  actual  value  of  imported  goods 
then  in  custom  house,  although  the  duties  had  not  been 
paid  or  secured.  Wolfe  v.  Howard  Ins.  Co.  1  Sandf.  'N. 
Y.  124,  1847 ;  affirmed,  3  Seld.  N.  Y.  583.     1853. 

§  20.  K,  after  effecting  insurance  on  a  'mortgage  in- 
terest, the  insured  parts  with  any  of  his  securities,  or  part 
of  his  claim  is  paid,  the  insurer  will  only  be  liable  on  his 
insurance  to  the  amount  remaining.    But  if  the  insured 


%r^ 


216 


DAMAGES. 


parts  with  a  portion  of  his  securities,  or  receives  part  of 
his  claim,  after  the  suit  is  commenced,  it  does  not  affect 
the  case.  The  equitable  claims  between  the  parties  cannot 
be  left  to  the  jury  on  the  trial ;  their  rights  must  be  de- 
termined as  they  stood  when  the  suit  was  commenced,  and, 
if  the  insurer  has  any  remedy,  he  must  resort  to  a  court  of 
equity.  Sussex  County  Mut.  Ins.  Co.  v.  "Woodruff,  2 
Dutch.  N.  J.  641.     1856. 

§  21.  Under  an  ordinary  liie  policy,  agreeing  to  make 
good  all  loss  or  damage  to  the  property  insured,  not  ex- 
ceeding the  sum  insured,  where  the  assured  had  at  risk 
$18,000  at  time  of  fire,  his  loss  being  but  $6,000,  and  his 
insurance  $5,000 ;  Held^  that  he  could  recover  the  whole 
amount  of  $5,000,  and  not  the  proportion  only  of  $5,000 
to  $18,000,  as  in  marine  insurance.  Mississippi  Mut.  Ins. 
Co.  V.  Ingram,  34  Miss.  215.     1857. 

§  22,  The  report  of  a  committee  of  a  mutual  insur- 
ance company,  appointed  by  the  president,  in  accordance 
with  the  provisions  of  the  act  of  incorporation,  "  to  exam- 
ine and  inquire  into  a  loss,  and,  after  ascertaining  the  sum 
to  which  the  assured  is  entitled,  to  make  provision  and 
payment  thereof,"  is  not  conclusive  of  the  amount  of  the 
loss,  in  an  action  by  the  insured  against  the  company  on 
the  policy  of  insurance.  Insurance  Co.  v.  Rupp,  29  Penn. 
St.  526.     1858. 

§  23.  Where  a  policy  of  insurance  on  a  steamboat,, 
against  fire,  provided  that  in  the  event  of  loss  the  damage 
should  be  estimated  "according  to  the  true  and  actual 
cash  value  of  the  said  property  at  the  time  the  same  shall 
happen;"  Held^  that  in  estimating  loss  the  defendants 
were  not  entitled  to  have  taken  into  account  a  depression 
in  the  value  of  steamers  generally,  caused  by  circum- 
stances which  m'ight  be  temporary  only.  McCraig  v. 
Quaker  City  Ins.  Co.  18  Upper  Canada,  Q.  B.  130.    1859. 

§  24.  In  a  policy  of  $3,000  on  reaping  machines,  it 
was  stipulated  that  "  the  company  would  make  good  to 
assured  all  loss*  or  damage  to  the  property  by  nre,  the 
said  loss  or  damage  to  be  estimated  according  to  the  true 
and  actual  cash  value  of  the  said  property  at  the  time 


DAMAGES. 


217 


I 


the  same  shall  happen."  There  was  evidence  offered  to 
show  that  the  machines,  on  account  of  defective  principle, 
were  only  valuable  as  so  much  wood  and  iron ;  but  the 
judge  instructed  the  jury  that  the  cost  of  construction, 
and  before  it  was  tried  in  the  field,  would  be  the  measure 
of  damages.  Held^  that  such  instruction  was  erroneous, 
and  the  measure  of  damages  was  that  agreed  upon  in  the 
policy,  to  wit :  "  the  actual  cash  value  at  the  tune  of  the 
loss  and  damage."  Also,  that  the  option  to  replace  the 
machinery,  if  destroyed,  was  a  reservation  for  the  benefit 
of  the  company ;  they  were  not  bound  to  adopt  it.  What 
it  would  cost,  therefore,  to  replace  the  reaping  machines, 
did  not  famish  the  rule  for  the  damagea  which  the  com- 
pany must  pay  to  make  good  the  loss. 

Nor  was  the  fact  that  the  machines  insured  were 
constructed  under  a  patent,  of  any  importance.  Patented 
or  unpatented,  what  they  were  worth  at  the  happening  of 
the  fire,  was,  by  agreement  of  the  parties,  to  be  the  meas- 
ure of  their  value ;  and  this  must  be  ascertained  by  testi- 
mony, as  is  done  in  every  other  case,  where  the  value  i» 
not  fixed.  C6mmonwealth  Ins.  Co.  v.  Sennet,  37  Penn. 
St.  205.     1860. 

§  25.  Where  a  policy  of  insurance  against  fire,  on  a  » 
steamboat,  provided  that  the  "loss  or  damage  shall  be 
estimated  according  to  the  true  and  actual  cash  value  of 
the  property  at  the  time  the  loss  shall  happen,"  and  the 
defendants  introduced  Evidence  of  the  market  price  and 
value  of  other  steamboats,  similar  or  nearly  so  to  the  one 
insured,  and  at  or  about  the  time  of  the  accident,  as  the 
policy  criterion  of  the  value  of  the  boat  insured,  which 
evidence  the  court  refused  to  admit,  and  afterwards  in- 
structed the  jury  "that  the  value  was  to  be  the  fair 
value,  at  the  time  of  the  loss,  unaffected  by  local  circum- 
stances or  by  rther  accidental  causes  of  depreciation;" 
Heldy  that  the  court  erred,  both  in  its  refusal  to  admit  Ihe 
evidence,  and  in  its  instruction  to  the  jury ;  that  the  value 
of  the  subject  insured  was  to  be  determined  in  conformity 
to  the  stipulation  in  the  policy,  and  that  the  defendant's 
criterion  of  value  was  the  proper  one.  Grant  v.  ^tna 
Ins.  Co.  Queen's  Bench,  Appeal  side,  Montreal,  Lower 
Canada.     1860. 


I 


BM.''  Ill 

PI 

ii 


h' 


218 


DAMAGES. 


§  26.  Under  a  policy  on  a  building  which  provides 
that  the  insurers  may  "  make  good  the  damage  by  repairs, 
and  the  insured  shall  contribute  one-fourth  of  the  ex- 
pense," if  the  insurers,  intending  to  comply  with  this  pro- 
vision in  good  faith,  make  repairs  of  substantial  benefit, 
though  not  fully  making  good  the  loss,  the  measure  of  the 
assured's  damages  is  the  difference  between  the  value  of 
the  building  as  repaired,  and  what  it  would  have  been  if 
fully  repaired,  deducting  one-fourth  of  their  value  to  the 
estate.  Parker  v.  Eagle  Fire  Ins.  Co.  9  Gray,  Mass.  152. 
1857. 

§  27.  A  policy  of  insurance  contained  the  following 
condition :  "  Where  property  insured  in  this  company  is 
damaged  by  removal  from  a  building  in  which  it  is  ex- 
posed to  fire,  said  damage  shall  be  borne  by  the  insured 
and  insurers  in  such  proportions  as  the  whole  sum  in- 
sured bears  to  the  whole  value  of  the  property  insured,  of 
which  proof  in  due  form  shall  be  made  by  the  claimant." 
A  portion  of  the  property  insured  was  wholly  destroyed 
by  fire,  and  another  portion  damaged  by  removal.  In  an 
action  to  recover  all  the  damages  sustained ;  Held^  that 
the  condition  meant  that  the  damage  occasioned  by  the 
removal  of  the  property,  should  be  borne  by  the  parties 
according  to  their  respective  interests  or  risks,  the  share 
of  either  bearing  the  same  proportions  to  the  whole  dam- 
age that  his  interest  in  the  property  or  risk  bore  to  the 
whole  value,  and  that  the  insured  could  recover  only  such 
proportion  of  the  loss  by  removal  as  the  insurance  bore  to 
the  whole  property  at  risk  at  the  time  of  the  fire.  Peoria 
Marine  &  Fire  Ins.  Co.  v.  Wilson,  5  Minn.  53.     1860. 

§  28.  Upon  a  loss  after  a  release  of  his  interest  by 
one  member  of  a  firm,  the  other  partners  to  whom  the  re- 
lease was  given  c^n  recover,  in  their  own  names,  the 
whole  loss  under  the  policy,  including  not  only  the  inter- 
est released,  but  also  any  loss  of  goods  bought  by  them 
after  the  release,  coming  within  the  description  in  the 
policy.  Hoffiuan  v.  ^tna  Fire  Ins.  Co.  1  Kobert.  N.  Y. 
501.  1863;  s.  o.  19  Abb.  Pr.  325;  affirmed,  32  N.  Y. 
405. 

§  29.    If  goods  were  those  which  insured  dealt  in 


DAMAGES. 


219 


at  wholesale,  or  manufactured,  the  price  for  which  similar 
goods  were  generally  sold  by  wholesale  dealers  or  manu- 
facturers may  be  considered  by  the  jury  in  estimating 
their  value,  in  an  action  upon  a  policy  to  recover  for  their 
loss.  Hoffiuan  v.  iEtna  Ins.  Co.  1  Robert.  N.  Y.  501. 
1863;  8.  0.  19  Abb.  Pr.  325;  affirmed,  32  N.  Y.  405. 

§  30.  Where  there  is  a  provision  in  a  contract  of  in- 
surance that,  instead  of  paying  the  damages  in  money  in 
case  of  loss,  the  insurers  may  elect  to  rebuild  on  giving 
the  notice  stipulated  in  such  contract,  and  a  loss  occurs 
and  the  insurers  elect  to  rebuild  and  give  the  stipulated 
notice  to  the  insured ;  the  contract  is  thereby  converted 
into  a  building  contract ;  and  the  amount  of  the  insurance 
named  in  the  policy  ceases  to  be  a  measure  of  damages. 
Morrell  v.  Irving  Fire  Ins.  Co.  33  N.  Y.  429.    1865. 

§  31.  Where  insurers  elected  to  rebuild  and  partially 
performed  the  contract,  but  desisted  therefrom  before  fully 
completing  it,  the  rule  of  damage,  in  an  action  brought  by 
the  insured  for  the  non-performance  of  the  building  con- 
tract, is  the  amount  it  would  take  to  complete  the  ouild- 
ing  by  making  it  substantially  like  the  one  destroyed,  in- 
dependent of  what  had  already  been  expended  thereon. 
Morrell  v.  Irving  Fire  Ins.  Co.  33  N.  Y.  429.     1865.  . 

§  32.  If  a  partial  loss  occurs  upon  a  domestic  policjr, 
for  a  sum  expressed  in  dpllars,  upon  property  situated  in 
a  foreign  country,  the  rule  for  estimating  damages  is  to 
determine  the  loss  at  the  place  where  it  occurred,  in  the 
currency  of  that  country,  and  then  to  find  the  equivalent 
in  the  country  where  suit  is  brought,  by  determining  the 
actual  intrinsic  value  of  the  currency  of  that  country,  as 
compared  with  the  currency  of  the  other.  And  that  the 
policy  contains  a  provision  that  in  case  of  loss  the  com- 
pany shall  have  the  right  to  replace  the  articles  lost  or 
damaged  with  others  of  the  same  kind  and  equal  goodness, 
does  not  affect  this  rule.  Burgess  v.  Alliance  Ins.  Co.  10 
Allen,  Mass.  221.     1865. 

§  33.  A  company  insuring  goods  is  liable  for  their 
actual  market  value  at  the  time  of  loss,  not  for  the  cost 
price,  although  profits  had  not  been  insured.  Equitable 
Fire  Ins.  Co.  v.  Quinn,  11  L.  C.  170.     1861. 


I 

[ 


hn 


220 


DAMAGES  BETOND  ACTUAL  LOSS. 


See  CoDBequential  Damages,  and  Damages  Beyond  Actual  Loss.  Also, 
Agent,  §S.  Alienation,  2,  88,  61.  Assessments,  S.  Description  of  Property 
Insured,  19.  Evidence,  6, 12,  16,  24,  89,  102.  Floating  Policy,  1,  2.  Insur- 
able Interest,  6,  9,  11,  18,  28,  49.  Other  Insurance,  100.  Parol  Contract,  7. 
Premium  Notes,  24.  Rebuild,  Repair,  or  Replace,  18.  Reinsurance,  4,  6. 
Risk,  7.  Successive  Losses,  1,  8,  4.  Two-thirds  or  Three-fourths  Clause,  3, 6, 
7,8,9,10.    Who  may  Sue,  7.    Written  Portion  of  Policy,  2. 


DAMAGES  BEYOND  ACTUAL  LOSS. 

§  1.  U.  contracted  to  sell  a  house  and  lot  to  W.,  and 
afterwards  took  policy  on  house  in  his  own  name,  and  re- 
ceived part  of  purchase  money  before  insurance,  and  more 
before  loss.  Held^  1st,  that  the  policy  prima  fade  cov- 
ered the  entire  legal  and  equitable  interest,  and  not  merely 
U.'s  security  for  the  balance  of  purchase  money  due ;  IJ. 
being  entitled  to  recover  for  the  whole  loss,  holding  the 
surplus,  after  paying  himself,  as  trustee  for  W.  If  a 
more  limited  interest  was  intended  to  be  covered  by  the 
policv,  the  burden  of  showing  this  was  on  the  company; 
2d,  that  as  the  insurance  was  on  the  house,  not  expi  jssed 
to  be  to  cover  a  debt,  and  not  including  the  lot,  the 
company  was  not  entitled  to  any  cession  of  the  lot,  or  of 
the  claim  against  W. ;  and,  as  the  house  was  totally  de- 
stroyed, there  was  nothing  of  that  to  cede.  Insurance 
Co.  V.  Updegraff,  21  Penn.  St.  513.     1853. 

§  2.  Where  a  mortgagee  had  mortgagor's  policy  as- 
signed to  him  with  consent  of  the  company,  and  had  given 
another  note  for  payment  of  assessments,  and  thereby,  un- 
der by-laws  of  the  company,  stood  in  the  same  position 
as  if  holding  policy  of  company  on  his  interest  as  mort- 
gagee, and  a  fire  'occurred,  damaging  mortgaged  property 
to  the  amount  of  $574,  wliieh  was  repaired  and  made 
good  as-  before,  by  the  owner  of  the  equity  of  I'edemp- 
tion  before  the  commencemGnt  of  this  suit ;  Held,  never- 
theless, that  the  contingency  contemplated  by  the  contract 
had  arisen,  and  the  company  weie  bound  to  pay  the 
amount  of  the  damage.  Foster  v.  Equitable  Mut.  Fire 
Ins.  Co.  2  Gray,  Mass.  216.     1854. 


DAHAOSS  BETOND  ACTUAL  LOSS. 


221 


f. 


§  3.  A  policy  insuring  "  all  the  articles  making  up 
the  stocL  of  a  pork  house,  and  all  nrithin  the  building  and 
pertinent  thereto,"  covers  everything  properly  belonging 
to  the  stock  of  a  pork  house,  without  regard  to  the  par- 
ticular ownership  of  each  and  every  article  contained  in  or 
appurtenant  to  tne  building,  and  although  clause  in  policy 
requires  "goods  on  commission  to  be  insured  as  such, 
^tna  Ins.  Co.  v.  Jackson,  16  B.  Monroe,  Ky.  250.     1855 

§  4.  In  a  suit  brought  by  mortgagee,  on  a  policy  of 
insurance  against  fire,  it  is  not  competent  for  the  insurance 
company,  in  order  to  defeat  or  diminish  the  recovery  of  as- 
sured, to  show  that  the  mortgaged  premises,  notwithstand- 
ing the  loss,  are  still  ample  security  for  the  debt.  Ker- 
nochan  v.  New  York  Bowery  Fire  Ins.  Co.  5  Duer,  N.  Y. 
1.     1855.    Affirmed,  17  N.  Y.  428.     1*858. 

§  5.  When  a  policy  of  insurance  is  held  by  a  mortga- 
gee, whose  mortgage  was  given  partly  for  the  price  of  the 
and.  and  partly  to  secure  payment  of  advances  to  be  made 
for  the  building ;  Held,  that  after  a  loss  by  fire,  the  mort- 
gagee might  recover  the  whole  insurance,  and  was  not 
obliged  to  look  to  the  land  for  its  value,  although  the  land 
was  sufficient  to  satisfy  the  balance  of  the  mortgage  due ; 
but  upon  payment  of  the  loss,  the  insurers  womd  be  en- 
titled to  subrogation,  and  could  enforce  the  security 
against  the  land.  Rex  v.  Insurance  Co.  2  Philadelphia 
Itep.  Pa.  357.     1858. 

§  6.  M.  sold  to  L.  a  lot  of  land  in  consideration  of  a 
constituted  rent  of  £60,  payable  annually  on  a  capital  of 
i6 1,000,  the  purchaser,  by  the  deed,  binding  himself  to 
erect  buildings  on  the  lot,  and  insure  the  premises  to  the 
extent  of  £400  as  collateral  security.  M.  afterwards  sold 
the  debt  to  the  plaintiff,  who  insured  the  buildings,  so 
erected  by  L.,  to  the  extent  of  £400,  being  declared  in  the 
policy  "  to  cover  a  constitut  held  by  the  assured  on  the 
property  described,  as  security  for  the  payment  of  the 
land."  Whilst  this  policy  was  in  force,  the  buildings 
were  destroyed  by  fire,  but  were  rebuilt  and  restored  to 
their  original  condition  and  value  by  the  purchaser,  L., 
before  the  action  was  brought  by  plaintiff.    In  an  action 


1 1 


1' 
\ 


\\. 


%\ 


222 


DEPENDENCY  OF  POLICY  AND  PEEMIUM  NOTE. 


! 


\i  I 


by  plaintiff,  on  the  policy  issued  to  him;  Heldy  that 
the  contract  of  insurance  was  a  contract  oi*  indemnity, 
and  as  the  buildings  had  been  restored,  and  the  security 
of  plaintiff  thereby  made  as  valuable  as  before  the  fire, 
and  this  had  been  done  before  the  commencement  of  this 
suit,  the  plaintiff  had  sustained  no  loss  or  damage,  and 
could  not  therefore  recover.  Matthewson  v.  Western 
Assurance  Co.  10  Lower  Canada,  S.  C.  Montreal,  8.     1859. 

§  7.  A  policy  of  insurance  upon  goods  will  not  be 
discharged  by  an  executory  contract  for  the  sale  of  such 
goods,  or  by  the  receipt  of  a  portion  of  the  purchase 
money  therefor,  if  at  the  time  of  the  loss  the  title  to  the 
goods  remains  in  the  person  insured;  and  his  right  to 
recover  is  not  limited  to  the  balance  of  purchase  money 
remaining  due  .Boston  &  Salem  Ice  Co.  v.  Royal  Ins.  Co. 
12  Allen,  Mass.  381.     1866. 

See  Alienation,  §  28,  33.  Goods  in  Trust  or  on  Commission,  2,  8, 10.  In- 
surable Interest,  24.  Responsibility  of  Assignee  for  acts  of  Assignor,  8.  Writ> 
ten  Portion  of  Policy,  2. 


DEPENDENCY  OF  POLICY  AND  PREMIUM 

NOTE. 

§  1.  Where  a  policy  in  a  mutual  company  is  obtained 
upon  the  suppression  of  a  fact  in  the  application  which 
was  material  to  the  risk,  a  subsequent  reception  of  an  in- 
stalment on  the  premium  note  does  not  render  the  policy 
binding,  in  a  case  where  neither  the  company  nor  the 
agent  had  notice  of  the  existence  of  the  fact  suppressed, 
Allen  V.  Vermont  Mut.  Fire  Ins.  Co.  12  Vt.  366.     1840. 

§  2.  After  an  assignment  of  the  policy,  which  was 
relied  on  as  having  avoided  the  contract,  an  assessment 
was  made  on  premium  note,  signed  by  plaintiffs,  for  losses 
occurring  before  the  assignment.  Hmd^  that  the  collection 
of  these  assessments  did  not  revive  the  policy.  Smith  v. 
Saratoga  Co.  Mut.  F.  Ins.  Co.  3  Hill,  N.  Y.  608.    1842. 

§  3.    Where  policy  provided,  that  upon  alienation  of 


DEPENDENCY  OP  POLICY  AND  PREMIUM  NOTE. 


22a 


the  property  insured,  the  assured  might  surrender  his 
policy  and  take  up  his  premium  note,  upon  payment  of 
all  losses  then  due,  &c.,  and  the  insured  alienated  the 
property,  but  did  not  surrender  the  policy  or  take  up  his 
note,  and  the  company  had  full  knowledge  that  the  policy 
had  become  void  by  alienation  of  the  property,  and  after- 
wards collected  assessments  on  account  of  losses  after 
such  alienation ;  Jleld^  that  this  did  not  revive  the  policy, 
nor  operate  as  a  waiver  of  the  right  of  the  company  to 
treat  it  as  void.  Neely  v.  Onondaga  County  Mut.  Ins.  Co. 
7  Hill,  N.  Y.  59.    1844. 

§  4.  If  an  insurance  company,  with  a  knowledge  of 
breach  of  warranty  in  application  as  regards  distance  of 
other  buildings,  which  avoids  the  policy  ab  initio,  make 
and  receive  assessments  from  insured  on  his  premium 
note,  after  the  fire,  and  with  knowledge  of  the  breach^ 
they  will  be  estopped  from  setting  up  the  breach  of  war- 
ranty in  defense  to  an  action  on  the  policy.  Frost  v.  Sar- 
atoga Co.  Mut.  Ins.  Co.  5  Denio,  N.  Y.  154.     1848. 

§  5.  Where  policy  has  been  rendered  void  by  a  trans- 
fer of  interest,  the  insured  continues  personally  liable  on 
his  premium  note,  until  an  actual  surrender  of  the  policy 
to  the  insurance  company.  Indiana  Mut.  Fire  Ins.  Co.  v. 
Coquillard,  2  Carter,  Ind.  645.     1851. 

§  6.  After  forfeiture  of  policy,  by  alienation  of  the 
property  insured,  a  member  is  not  liable  for  assessments 
on  his  premium  note  for  losses  occurring  after  such  aliena- 
tion. Wilson  V.  Trumbull  Mut.  Fire  Ins.  Co.  19  Penn.  St. 
372.    1852. 

§  7.  The  insured  is  liable  for  assessments  on  his  pre- 
mium note  during  the  whole  term  of  insurance,  even 
though  the  property  had  been  consumed  and  full  amount 
of  policy  paid,  unless  there  is  something  in  the  charter  or 
by-laws,  or  premium  note,  showing  a  different  contract  or 
discharge.  New  Hampshire  Mut.  Fire  Ins.  Co.  v.  Rand^ 
4  Fost.  N.  H.  428.  1852.  Swamscot  Machine  Co.  v. 
P:irtridge,  5  Fost.  N.  H.  369.     1852. 

''  8.    Where  policy  was  avoided  by  alienation  before 


224 


DEPENDENCY  OF  POLICY  AND  PREMIUM  NOTE. 


the  fire,  and  the  insurers  levied  and  collected  an  assess- 
ment made  after  the  fire ;  Jleld,  not  a  waiver  of  the  for- 
feiture. Boynton  v.  Clinton  &  Essex  Mut.  Ins.  Co.  16 
Barb.  N.  Y.  254.     1853. 

§  9.  Insurance  upon  machinery  in  mill,  with  condi- 
tion "  that  if  the  mill  were  operated  the  policy  should  be 
void."  The  mill  burned  up  on  the  26fch  of  April,  and  on 
the  1st  of  April  the  company  levied  an  assessment  of 
$26,  and  collected  it  on  the  4th  of  July  following.  It 
was  proven,  on  trial,  that  the  condition  had  been  violated 
by  assured  by  putting  the  mill  in  operation  after  the 
insurance  was  effected,  and  the  company  relied  upon  it 
as  a  matter  of  defense.  Held,  that  when  the  policy  be- 
came void  by  breach  of  condition,  the  note  also  became 
void ;  and  that  the  company,  by  collecting  an  assessment 
on  it,  with  a  knowledge  of  the  facts,  had  waived  the  for- 
feiture, and  admitted  the  contract  of  insurance  as  still  in 
existence.  Viall  v.  Genessee  Mut.  Ins.  Co.  19  Barb.  N.  Y. 
440.     1854. 

§  10.  The  plaintiff,  after  loss,  notified  the  company 
of  the  existence  of  another  policy  on  the  property,  not 
before  known  to  them,  the  existence  of  which  without 
consent  of  the  company  rendered  their  policy  void,  upon 
which  the  company  rejected  his  claim.  Afterwards  the 
company  made  and  collected  an  assessment  on  plaintiff's 
premium  note.  Held,  that  such  assessment  did  not  waive 
the  forfeiture,  and  render  the  company  liable  to  pay  the 
loss.  Philbrook  v.  New  England  Mut.  Fire  Ins.  Co.  37 
Me.  137.     1853. 

§  11.  The  receipt  of  assessments,  after  the  insured 
property  was  destroyed  by  fire,  for  losses  occurring  during 
continuance  of  jthe  policy,  such  losses  also  occurring  after 
the  policy  had  been  forfeited  by  act  of  the  insured,  is  no 
waiver  of  the  forfeiture.  Gardiner  v.  Piscataquis  Mut. 
Ins.  Co.  38  Me.  439.    1854. 

§  12.  In  this  case,  HeM,  that  with  the  sale  of  the 
property  all  liability  on  the  premium  cote  ceased  and 
company  could  not  recover  on  it.  The  policy  and  pre- 
mium note    are    dependent    contracts.      Indiana   Mut. 


DEPENDENCY  OF  POLICY  AND  PREMIUM  NOTx,. 


225 


Fire  Ins.  Co.  v.  Conner,  5  Port.  Ind.  170.     1854.     Over- 
ruling 2  Carter,  Ind.  645. 

§  13.  If  insurance  company  continue  to  treat  policy 
as  valid,  by  not  declaring  it  void,  and  continuing  to  levy 
and  collect  assessments  on  the  premium  note,  even  after 
the  loss,  after  notice  of  an  insurance  beyond  the  amount 
allowed  within  policy,  it  is  a  waiver  of  their  right  to  re- 
sist a  recovery  on  that  ground.  A  condition,  however, 
that  the  loss  shall  be  apportioned  between  this  and  other 
offices  insuring  on  same  property,  ^ra  rata^  is  not  thereby 
waived.  Insurance  Co.  v.  Stockbower,  26  Penn.  St.  199. 
1856. 

§  14.  "Where  an  auministrator,  after  death  of  assured, 
paid  assessments  on  the  premium  note  for  losses  occurring 
subsequently  to  the  death  of  the  assured,  it  was  Held,  that 
by  the  levying  and  collection  of  such  assessments  the  com- 
pany were  estopped  from  denying  the  validity  of  the  insur- 
ance after  that  event,  and  that  the  administrator  should 
be  allowed  whatever  he  paid  as  assessments  for  losses  hap- 
pening after  the  death  of  the  intestate,  for  two  reasons : 
1st,  on  the  ground  that  it  was  his  duty  to  preserve  the 
property  while  in  his  care ;  and  2d,  because  the  lien  upon 
property  insured,  given  by  the  charter  of  the  company  in 
which  intestate  had  been  insured,  "  such  lien  to  continue 
during  the  existence  of  the  policy  and  the  liability  of  the 
assured  therein,  notwithstanding  any  transfer  or  aliena- 
tion," was  a  valid  lien  and  an  encumbrance  which  it  was 
the  duty  of  the  administrator  to  remove.  Tuttle  v.  Rob- 
inson, 33  N.  H.  104.     1856. 

§  1 5.  The  charter  provided  that  all  persons  who  should 
insure  with  the  corporation,  should  thereby  become  mem- 
bers thereof  during  the  period  they  should  remain  so  in- 
sured, and  no  longer.  .  Held,  that  under  this  charter,-  a 
party  insuring  continued  a  member  of  the  corporation,  and 
liable  to  assevssments  on  his  premium  note,  during  the  term 
of  the  policy;  and  that  this  membership  and  liability  did 
not  terminate  when  a  loss  occurred  and  the  policy  was 
paid  up.  Bangs  v.  Scidmore,  24  Barb.  N.  Y.  29.  1857. 
Affirmed  21  N.  Y.  136— see  post,  §  19. 

§  16.     Where  policy  had  become  void  by  sale  of  one 

IS 


226 


DEPENDENCY  OF  POLICY  AND  PEEMIUM  NOTE. 


partner  to  the  other,  and  the  company,  in  ignorance  of  that 
fact,  afterwards  collected  assessments  on  the  premium 
note  of  the  remaining  partner,  and  at  time  of  loss  chose 
appraisers  to  determine  the  value  of  the  property  lost ; 
Held^  that  the  company  had  not  thereby  waived  forfeiture 
of  the  policy.  Finley  v.  Lycoming  County  Mut.  Ins.  Co. 
30  Penn.  St.  311.     1858. 

§  17.  Where  charter  provided  that  in  case  of  aliena- 
tion of  the  property  insured,  the  assured  should  surrender 
his  policy,  take  up  his  premium  note,  <fec. ;  Held^  that  an 
alienation  of  the  property  insured,  without  notice  to  the 
company,  or  surrender  of  policy,  would  not  release  as- 
sured from  liability  for  assessments,  upon  his  premium 
notes,  for  losses  occurring  subsequent  to  the  alienation ; 
but  where  a  by-law  provided,  "  that  when  an  insured  has 
aliened  his  property  insured,  before  any  loss  has  been  sus- 
tained, his  premium  note  shall  not  be  assessed,  although 
he  has  not  surrendered  his  policy ;"  Held^  that  his  liability 
upon  his  premium  note  for  assessments,  for  losses  occur- 
ring subsequent  to  the  alienation,  ceased ;  that  by  this  by- 
law the  company  waived  a  compliance,  by  any  or  all  of 
its  members,  with  the  provisions  of  the  charter  relating  to 
a  surrender  of  the  policy,  <fec.  Huntly  v.  Beecher,  30 
Barb.  N.  Y.  580.     1859. 

§  18.  The  condition  in  an  insurance  policy  issued  to 
C.  <fe  Co.  was  as  follows:  "Any  member  of  this  company 
who  shall  have  been  assessed  for  the  payment  of  any  loss 
or  damage  by  fire,  neglecting  or  refusing  to  pay  such  as- 
sessment for  thirty  days  after  he  or  she  shall  have  had 
notice  of  the  same,  shall  forfeit  his  or  her  policy,  provided 
the  premium  note  or  notes  deposited  with  the  company, 
after  paying  aijy  losses  or  expenses  that  may  have  ac- 
crued thereon,  shall  be  given  up  to  him  or  her  on  demand ;" 
the  policy  was  assigned  January  13,  1855,  the  transfer  ap- 
proved by  the  company  March  5,  1855,  and  the  premium 
note  of  C.  <fe  Co.  given  up,  and  a  new  note  taken  from 
the  assignees.  An  assessment  had  been  made  on  the  note 
of  C.  <fe  Co.  October  3d,  1854,  notice  of  which  assessment 
was  given  to  them,  and  to  the  plaintiffs  May  17,  1855 
the  assessment  was  not  paid.    In  an  action  on  the  p^-icy, 


DEPENDENCY  OF  POLICY  AND  PREMIUM  NOTE. 


227 


brought  by  the  assignees  to  recover  for  a  loss  by  fire ; 
Held^  that  it  was  only  a  "  member  "  of  the  company,  who 
shall  have  been  assessed  for  the  payment  of  any  loss,  that 
could  incur  the  forfeiture  by  non-payment  of  the  assess- 
ment ;  that  at  time  of  this  assessment  plaintiffs  were  not 
members  of  the  company ;  the  assessment  was  not  made 
against  them  or  upon  their  note ;  that  the  fire  had  occurred 
and  the  assessment  been  made  bef<r>re  they  became  mem- 
bers; and  that  the  validity  of  the  policy,  therefore,  was 
not  affected  by  the  non-payment  of  the  assessment  against 
C.  <fe  Co.,  they  not  being  members  of  the  company  when 
notice  of  the  assessment  was  given  to  them.  Brannin  v. 
Mercer  County  Mut.  Fire  Ins.  Co.  4  Dutch.  N.  J.  92. 1859. 

§  19.  The  case  of  Bangs  v.  Scidmore,  cited  ante^  §  15 ; 
affirmed  21  N.  Y.  136.     1860. 

§  20.  The  policy  contained  a  clause,  that  if  the  prem- 
ises should  be  appropriated  to  uses  hazardous  or  extra 
hazardous,  then  it  should  cease  to  be  of  effect  "  so  long  as 
the  same  shall  be  so  used."  The  premises  were  put  to 
uses  which  forfeited  the  policy,  but  it  was  claimed  that 
the  company  had  waived  the  forfeiture  by  the  collection  » 
of  assessments.  Held^  that  if  the  company,  with  full 
knowledge  of  the  forfeiture,  collected  assessments  for 
losses  occurring  after  the  forfeiture,  they  ought  not  in  good 
conscience  and  honest  dealing  to  be  permitted  to  gainsay 
the  admission  implied  by  the  act.  At  least  a  jury  would 
be  justified  in  concluding,  from  such  assessments  and  col- 
lection, that  the  forfeiture  had  been  waived.  Keenan  v. 
Missouri  State  Mut.  Ins.  Co.  and  Ryder  v.  Same,  12 
Iowa,  126.     1861. 

§  21.  After  a  company  has  chosen  to  assert  the  valid- 
ity of  a  policy  issued  by  it,  by  bringing  an  action  uppn 
the  premium  note  to  recover  an  assessment,  the  insured 
cannot  be  permitted  to  set  up  the  falsity  of  his  own  state- 
ments in  the  application  to  avoid  the  policy,  and  show  a 
want  of  consideration  for  the  note.  Iluntley  v.  Periy,  38 
Barb.  N.  Y.  669.     1860. 

§  22.  An  action  to  recover  assessments  upon  a  pre- 
mium note  given  a  mutual  insurance  company,  cannot  be 
maintained  if  it  appears  that  the  policy  whicn  was  issued 


m: 


m 


Ifi 


228 


DEPENDENCY  OF  POLICY  AND  PBEMIUM  NOTE. 


was  invalid.    Haverhill  Ins.  Co.  v.  Prescott,  42  N.  H.  547. 
1861. 

§  23.  An  action  upon  a  note  given  fcj  the  premium 
on  a  policy  of  insurance,  will  not  be  defeated  by  proof  of 
an  unexecuted  parol  agreement  to  cancel  the  policy  and 
surrender  the  note  upon  payment  of  a  proportional  part 
of  the  amount  of  the  latter.  Columbia  Ins.  Co.  v.  Stone, 
3  Allen,  Mass.  385.     1862. 

§  24.  A  mutual  insurance  company  has  no  right  to 
assess  a  premium  note  for  losses  occurring  after  the  can- 
cellation of  the  policy,  or  for  anticipated  losses  arising 
from  a  supposed  failure  of  others  to  contribute  their  pro- 
portion of  losses  occuiTing  after  such  cancellation.  York 
County  Mut.  Fire  Ins.  Co.  v.  Turner,  53  Me.  225.     1865. 

§  •?'  ^"ITieii  an  insurance  company,  being  sued  by 
the  ill  1  J  recover  for  a  loss,  defended  the  action  upon 
the  ground  that  the  insured  had  procured  other  insurance 
upon  the  same  property,  without  giving  notice  of  the 
same,  or  ii;.  mg  1  .jidorsed  upon  the  policy  issued  by  such 
company ;  an(f  tlie  defense  was  sustained,  and  the  defend- 
ant recovered  a  judgment ;  Held,  that  such  judgment  was 
in  legal  effect  an  express  adjudication  between  the  parties 
that  the  policy  of  insurance  sued  on  was  void  and  of  no 
force  after  the  day  on  which  the  additional  insurance  was 
procured,  and  was  expressly  avoided  by  the  election  of 
the  company,  as  from  that  date ;  and  that  the  moment  the 
policy  became  thus  void  by  the  election  of  the  company 
to  avoid  it,  the  note  given  by  the  insured,  for  the  pre- 
mium, also  became  void  for  want  of  consideration,  in  re- 
spect to  all  future  risks  and  losses  of  the  company,  and 
that  an  assessment  to  cover  losses  of  the  company  after 
such  date  could'not  be  recovered.  Tuckerman  v.  Bigler, 
46  Barb.  N.  Y.  375.     1866. 

§  26.  The  policy  having  been  surrendered  before  its 
expiration,  by  agreement  between  insured  and  the  direct- 
ors, the  insured  is  released  from  further  obligation  on  his 
premium  note.     Boland  v.  Whitman,  33  Ind.  64.     1870. 

See  Assessment,  §  35.    Other  Insurance,  78.     Premium  Notes,  3,  5,  7,  9, 
10,  22,  2S,  49.    Revival  and  Suspension  of  Policy,  2,  6. 


DESCRIPTION  OF  PROPERTY  INSURED. 

J*'  1.  Goods  insured  were  described  in  the  policy  to  be 
welling-house  of  insured ;  the  insured  had  only  the 
room,  as  a  lodger,  in  which  the  goods  were ;  Held,  cor- 
rectly described  within  the  condition  that  "  the  houses, 
buildings,  or  other  places  where  goods  are  deposited  and 
kept,  shall  be  truly  and  accurately  described,"  such  condi- 
tion relating  to  the  construction  of  the  house  and  not  to 
the  interest  of  the  parties  in  it.  Friedlander  v.  London 
Assurance  Co.  1  M.  cfe  Rob.  171.     1832. 

§  2.  Policy  on  certain  property  in  cotton  mill.  "  War- 
ranted that  the  above  mill  is  conformable  to  the  first  class 
of  cotton  and  woolen  rates  delivered  herewith."  The  mill 
in  fact  was  second  class.  Heldy  that  the  warranty  was 
broken,  and  it  made  no  diflference  whether  the  variance 
was  material  or  otherwise ;  there  could  be  no  recovery. 
Newcastle  Fire  Ins.  Co.  v.  MacMoran,  3  Dow,  255.     1815. 

§  3.  In  the  policy  of  insurance  it  was  stated  "  that  the 
dwelling-house  of  assured  was  built  of  stone  and  covered 
with  tin,  gables  through  the  roof  and  plafond,  iron  doors 
and  shutters."  The  fire,  destroying  the  building,  began 
in  an  adjoining  house,  and  spread  from  thence  to  a  wooden 
building  on  the  premises  of  assured,  from  which  it  was 
communicated  through  a'  doorway  of  the  dwelling-house, 
which  was  open,  although  it  had  an  iron  door,  to  the  inte- 
rior of  the  last-mentioned  edifice.  Held^  that  the  descrip- 
tion "iron  shutters  and  doors,"  whether  regarded  as 
representation  or  warranty,  was  substantially  true,  and 
did  not  include  by  implication  the  duty  of  keeping  them 
dosed  ;  Held  further,  that  the  fact  of  their  being  open  in 
thc>  middle  of  August,  at  8^  P.  M.,  was  no  proof  of  negli- 
gence. Scott  V.  Quebec  Fire  Ins.  Co.  1  Stuart,  Lower 
Canada,  147.     1821. 

§  4.  Policy  on  a  building  described  as  a  barn,  which 
was  an  agricultural  building,  not  strictly  to  be  described 
as  a  bam,  but  would  have  been  insured  at  the  same  rate. 
Description  held  substantially  correct.  Dobson  v.  Sothe- 
by,  1  Moody  &  M.  90.     (22  E.  C.  L.  481.)     1827. 


230 


DESCRIPTION  OF  PROPERTY  INSURED. 


§  5.  One  condition  attached  to  the  policy  provided 
that  a  misdescription  of  the  property  insured,  so  that  the 
same  might  be  taken  at  a  less  rate,  &c.,  should  avoid  the 
policy.  The  property  insured  was  de8ci'il)ed  as  contained 
in  a  "two-stoiy  frame  house,  filled  in  with  brick.  No.  152 
Chatham  street."  The  house  No.  152  Chatham  street  was 
a  frame  house  not  filled  in  with  brick.  IleJd,  that  the 
words  of  description,  "  filled  in  with  brick,"  were  a  war- 
ranty, which  being  untrae,  avoided  the  policy.  Fowler 
V.  iEtna  Ins.  Co.  of  N.  Y.  6  Cow.  N.  Y.  673.     1827. 

§  6.  Rule  annexed  to  policy  stated,  that  persons  de- 
sirous of  making  insurance  on  buildings  should  state  in 
writing  the  following  particulars,  towit :  "  Of  what  ma- 
terials the  walls  and  roofs  each  are  constructed,"  <fec. 
"  And  if  any  person  shall  cause  the  same  to  be  described 
in  the  policy  otherwise  than  as  they  really  are,  so  as  the 
same  be  charged  at  a  lower  premium  than  would  other- 
wise be  demanded,  such  insurance  shall  be  of  no  force." 
Held,  that  a  misdescription  would  not  avoid  the  policy, 
unless  a  lower  rate  of  premium  was  charged  in  conse- 
quence of  it,  and  whether  such  misdescription  reduced 
the  premium  which  would  otherwise  have  been  de- 
manded, was  a  question  of  fact  which  the  jury  alone  could 
decide.  Columbian  Ins.  Co.  v.  Lawrence,  2  Pet.  U.  S.  25. 
1829. 

§  7.  Policy  describing  the  premises  as  a  house 
bounded  in  rear  by  a  stone  building  covered  with  tin,  and 
by  a  yard,  in  which  yard  there  was  being  erected  a  first- 
class  store,  which  would  communicate  with  the  building 
insured ;  Jleld,  to  be  incorrect  and  therefore  null,  it  being 
proved  that  there  was  between  the  house  and  the  stone 
building  a  brick  building  covered  with  shingles  commu- 
nicating to  both  by  doors.  Casey  v.  Goldsmid,  2  Lower 
Canada  R.  200.     1852— but  seepost^  §  9. 

§  8.  Description  of  building  to  be  insured,  was  made 
by  an  agent  of  the  company,  who  gave  a  written  descrip- 
tion of  the  property  to  the  company,  including  a  kitchen, 
which  applicant  intended  to  build,  and  which  was  built 
after  issue  of  the  policy  and  before  the  fire.  If  objection 
be  taken  by  the  company  that  the  description  of  the  kit- 


DESCRIPTION  OF    PROPERTY  ENSURED. 


231 


■chen  building  was  erroneous,  tlie  insured  may  show,  by- 
verbal  testimony,  that  it  was  in  contemplation  at  time  of 
making  policy,  and  was  therefore  included  in  it,  and  may 
recover  for  the  loss  of  it,  and  if  it  appear,  by  the  evidence, 
that  the  additional  building  did  not  conform  to  the  inten- 
tion of  the  assured,  as  communicated  to  the  agent  of  the 
company  at  time  of  application,  the  variation  would  not 
of  itself  avoid  the  policy.  It  stands  upon  the  principles 
of  an  alteration,  and  avoids  the  policy  only  in  case  the 
risk  is  thereby  increased,  which  is  a  question  of  fact,  to  be 
determined  by  the  jury.  Perry  Ins.  Co.  v.  Stewart,  19 
Penn.  St.  45.     1852. 

§  9.  The  case  reported,  ante^  §  7,  reversed  and  judg- 
ment given  for  the  assured,  inasmuch  as  the  omission  to 
mention  such  doors  in  the  description,  was  not  proved  to 
have  been  a  fraudulent  concealment,  and  inasmuch  as  it 
was  not  established  that  the  fire  had  been  occasioned  and 
had  extended  by  means  of  such  apertures.  Casey  v. 
Goldsmid,  4  Lower  Canada,  Q.  B.  Appeal  Side,  107. 
1854. 

§  10.  There  is  an  implied  warranty  that  the  descrip- 
tion of  the  property  insured,  contained  in  the  policy,  is 
correct  at  the  date  of  the  policy,  and  that  no  alteration 
should  be  made  afterwards  so  as  to  increase  the  risk.  In 
October,  1850,  G.  S.  &  Co.  sent  to  agents  in  London  a 
description  of  their  twt)-8tory  house  in  San  Francisco, 
Cal.,  to  be  insured.  Policy  was  executed  April  7th,  1851, 
describing  the  building  as  a  two-story  house.  On  the  26th 
of  March,  1851,  G.  S.  &  Co.  commenced  putting  on  a  third 
story,  which  was  completed  May  3d,  of  which  the  under- 
writers were  not  informed.  Held,  that  the  insured  could 
not  recover  on  the  policy.  Pim  v.  Reid,  6  Man.  <fe  Grang. 
1.  Commented  on,  explained,  or  overruled,  Sillem  v.  Thorn- 
ton, 3  Ellis  &  Bl.  868  (77  E.  C..L.  808). .  1854. 

§  11.  The  error  of  an  insurance  company's  agent,  in 
making  and  transmitting  to  the  head  office,  a  diagram  of 
the  buildings  insured,  by  means  of  which  the  buildings 
are  described  in  the  policy  as  "  detached  "  instead  of  "  as 
connected  with  other  buildings,"  cannot  deprive  the  as- 
sured of  his  remedy  on  the  policy ;  and  to  a  plea  setting 


232 


DESCRIPTION  OF  PROPERTY  INSURED. 


up  that  the  policy  was  obtained  by  false  and  fraudulent 
misrepresentations,  as  to  the  buikiing  being  "  detached," 
and  as  to  the  number  of  the  occupants,  and  that  thereby 
the  conditions  of  the  policy  were  broken,  and  the  plaint- 
iff deprived  of  all  benefit  under  it,  the  plaintff  is  en- 
titled to  answer,  denying  such  misrepresentations,  and 
alleging  the  visits  of  the  company's  agent  to  the  insured 
premises,  and  his  doings  as  to  the  making  and  trans- 
mitting of  an  erroneous  diagram.  Soniers  v.  Atheneum 
Fire  Assurance  Co.  9  Lower  Canada  S.  C.  Montreal,  61. 
1858. 

§  12.  Insurance  on  premises  in  which  was  a  steam 
engine  which  was  mentioned  in  the  policy.-  The  engine 
was  then  used  to  hoist  goods,  of  which  the  company  was 
notified.  Afterwards  machinery  was  put  up  for  grinding, 
and  attached  to  the  engine,  of  which  the  company  had  no 
notice,  and  subsequently  a  renewal  of  the  policy  was  exe- 
cuted. Condition  that  every  policy  will  be  void,  unless 
the  nature  and  material  structure  of  the  buildings  and 
property  insured  be  fully  and  accurately  described,  <fec. 
Heldy  that  the  alteration  did  not  render  the  description  in 
the  policy  inaccurate  within  the  meaning  of  the  condition, 
so  as  to  avoid  the  policy.  Baxendale  v.  Harvey,  4  Hurl. 
&  Norm.  Exch.  445.     1859. 

§  13.  Application  stipulated  that  the  insurer  would 
not  be  bound  by  any  acts  or  statements  made  by  or  to  any 
agent,  unless  contained  in  it,  and  that  applicant  should  be 
liable  for  all  statements  in  application,  if  made  through 
an  agent.  The  subject  to  be  insured  was  described  in 
application  as  a  "  stone  dwelling-house,"  without  disclos- 
ing the  fact  that  there  was  a  wood  kitchen  attached,  al- 
though such  fact,  was  well  known  to  the  agent.  Heldy 
that  the  company's  proposition  wa&  to  insure  a  "  stone  '* 
dwelling-house,  and  assured  accepted  this  proposition,  and, 
as  the  house  was  part  wood  and  part  stone,  it  was  not  em- 
braced in  the  proposition,  and  no  contract  to  insure  such  a 
house  was  ever  made,  and  assured  could  not  recover ;  and 
that  the  knowledge  of  the  agent  was  immaterial.  Chase 
V.  Hamilton  Ins.  Co.  20  N.  Y.  52.  1859.  Reversing  22 
Barb.  N.  Y.  527.     1856. 


DESCRIPTION  OF  PROPERTY  INSURED. 


233 


§  14.  Where  policy  describes  the  interest  insured  as 
a  "mechanic's  lien,"  it  covers  both  a  lien  belonging  to 
assured  alone  and  his  interest  in  one  held  by  him  and  two 
others  jointly,  and  parol  evidence  is  admissible  to  show, 
that  the  intention  was  to  insure  such  separate  and  joint 
liens.  Lon^hurst  v.  Conway  Fire  Ins.  Co.  U.  S.  D.  Ct. 
Northern  Division,  Iowa,  October  Term.     1861. 

8  15.  A  buildinj?  havini?  five  floors  above  the  side- 
walk  is  properly  d38cribed  in  a  policy  as  a  five-story 
building.  The  cellar  is  not  a  story  m  the  ordinary  sense 
of  that  word.  Benedict  v.  Ocean  Ins.  Co.  1  Daly,  N.  Y. 
8.     1860. 

§  16.  Where  it  is  shown  that  an  insurance  company 
prepared  a  policy  -f  insurance  after  a  careful  examination 
of  the  insured  premises  by  their  own  surveyor,  and  with 
a  full  knowledge  of  the  nature  of  the  risk,  any  misde- 
scription of  the  policy  must  be  deemed  the  fault  of  the 
company,  and  the  insured  should  not  be  called  upon  to 
bear  the  consequences.  Benedict  v.  Ocean  Ins.  Co.  1 
Daly,  N.  Y.  8.     1860. 

§  17.  An  insurance  on  "merchandise^'  such  as  is 
usually  kept  in  country  stores,  is  not  void  because  hard-  ' 
ware,  china,  glass-ware,  looking-glasses,  <fec.,  were  not 
specifically  mentioned,  if  the  articles  were  such  as  are 
usually  kept  in  countiy.  stores.  Franklin  Fire  Ins.  Co.  v. 
Updegraflf,  43  Penn.  St.  350.     1862. 

§  18.  Where  one  of  the  conditions  of  a  policy  was 
that  "  a  false  description,  or  the  omitting  to  make  known 
any  fact  or  feature  m  the  risk  which  increases  the  hazard," 
shall  render  the  policy  void  ;  and  the  application,  which 
was  made  a  paii;  of  the  policy,  described  the  building  in- 
sured to  be  a  wooden  four-story  paper  mill,  60x70  feet 
f?'om  above  basement,  ten  feet  between  floors,  and  ceiled 
with  wood,  and  not  only  made  no  mention  of  a  brick 
"  bleach-house,"  20x30  feet,  which  was  separate!  from  the 
paper  mill  by  a  wooden  shed-roofed  building,  known  as  a 
"  salt-box,"  24x18  feet,  and  14  feet  high,  one  end  of  which 
was  formed  by  the  paper-mill  and  the  other  by  the  bleach- 
house,  but,  on  the  contrary,  in  answer  to  a  written  ques- 


234 


DESCRIPTION  OF  PROPERTY  INSURED. 


tion,  the  application  declared  there  was  no  building  within 
300  feet  of  the  mill,  except  the  "  stock-house,"  which  was 
other  than  the  "  bleach-house  "  or  "  salt-box."  Ileld^  that 
M^hefher  the  "bleach-house"  and  "salt-box"  were  a  part 
of  the  paper-mill  or  not,  the  warranty  on  the  part  of  the 
insured  was  broken.  Day  v.  Conway  Ins.  Co.  52  Me. 
60.     1862. 

^19.  An  agent  of  an  insurance  companjr  who  is  au- 
thorized to  issue  policies,  «fec.,  may,  after  a  policy  has  been 
delivered  by  him,  and  before  the  receipt  of  the  premium, 
coiTect  a  misdescription  in  the  name  of  the  street  on  which 
the  property  insured  is  situated.  "Warner  v.  Peoria  Ma- 
rine and  Fire  Ins.  Co.  14  Wis.  318.     1863. 

§  20.  "V^Tiere  the  plaintiffs,  as  mortgagees  of  a  part 
of  the  machine  works  and  buildings  occupied  by  the  mort- 
gagor, procured  a  policy  of  insurance  upon  their  interest, 
covering  all  the  said  works  and  buildings ;  Held^  that  in 
an  action  on  such  policy,  the  plaintiffs  could  recover  the 
amount  of  their  policy,  if  the  loss  upon  the  machine 
works  and  buildings  covered  by  the  mortgage  was  more 
than  the  amount  insured.  Fox  v.  Phenix  Fire  Ins.  Co. 
62  Me.  333.     1864. 

§  21.  A  description  of  property  to  be  insured  as 
"  The  five-story  building  and  three-stoiy  addition  known 
as  the  Lawrence  Block,  occupied  as  stores  on  the  first 
floor,  the  upper  portion  intended  for  a  hotel,  and  to  be 
unoccupied  during  the  continuance  of  this  policy,"  is 
not  a  warranty  that  all  the  rooms  on  the  first  floor  were 
occupied ;  and  if  any  of  the  rooms  on  that  floor  were  oc- 
cupied as  stores,  the  others  remaining  unoccupied,  the  Ian- 
giiage  of  the  policy  is  met.  Carter  v.  Humboldt  Fire  Ins. 
o.  17  Iowa,  456.*^  1864. 

§  22.  Describing  a  building  as  a  five-story  brick  build- 
ing, and  making  no  mention  of  a  cellar  under  it,  is  not  a 
misdescription,  though  there  be  a  cellar  under  the  build 
ing.    Benedict  v.  Ocean  Ins.  Co.  31  N.  Y.  389.     1865. 

§  23.  If  there  be  such  a  variance  between  the  de- 
scription of  property  intended  to  be  insured  and  its  actual 
description  as  will  amount  to  a  breach  of  warranty  in  any 


DESCRIPTION  OP   PROPERTY  INS  I  RED. 


235 


material  respect,  the  policy  Avill  he  void,  although  the 
insured  intended  to  effect  au  insurance  on  the  property  by 
whatever  description  might  ))e  correct.  (Said  to  be  too 
severe  in  Woods  v.  Same,  50  Mo.  112.)  Tesson  v.  Atlan- 
tic Mut.  Ins.  Co.  40  Mo.  33.     1807. 

§  24.  Suit  on  a  policy  of  insurance.  The  policy  de- 
scribes the  premises  as  between  Mead  and  Arch  streets, 
when  in  the  original  policy  A,sh  is  written.  As  the  de- 
scription was  complete  without  this  part,  and  as  extrinsic 
evidence  is  admissible  to  remove  the  en*or,  the  objec- 
tion of  variance  is  to  be  overruled.  Yonkers  N.  Y.  Fire 
Ins.  Co.  V.  Hoffman  Fire  Ins.  Co.  6  Rob.  (N.  Y.  Sup.  Ct.) 
316.     1868. 

§  25.  Per  Johnson,  J,  A  policy  describing  the  prem- 
ises as  a  "  dwelling-house,"  when,  in  fact,  they  are  used  in 
part  as  a  saloon,  which  increased  the  risk,  is  void,  when 
the  description  is  made  a  warranty,  and  when  an  omission 
to  make  known  any  fact  increasing  the  hazard,  is  to  avoid 
the  policy.  Lappin  v.  Charter  Oak  Fu'e  &  Marine  Ins. 
Co.  58  Barb.  325.     1870. 

§  26.  The  application  and  policy  described  the  build- 
ing as  a  "  dwelling-house."  Held,  a  warranty  that  it  was 
such,  and  used  as  such  exclusively,  and  the  occupation  of 
paii;  of  it  as  a  billiard  room  and  part  as  restaurant,  which 
occupations  are  among  the  classes  of  hazards  made  part  of 
the  policy,  avoids  the  insurance.  Sarsfield  v.  Metropolitan 
Ins.  Co.  61  Barb.  479.     1871. 

§  2  7.  The  assured  told  the  agent  that  the  building  was 
brick,  and  in  good  repair,  and  further,  that  by  the  settling 
of  one  wall,  wooden  studding  had  to  be  put  in  temporarily 
as  a  substitute  for  the  brick,  and  still  remained.  The 
policy  described  the  premises  as  a  "  brick  building."  Hdd, 
Ist.  The  description  was  no  waiTanty  that  the  building 
was  entirely  brick.  2d.  The  insurers  could  not  take  ad- 
vantage of  their  own  misdescription.  Gerhauser  v.  North 
British  <fe  Merc.  Ins.  Co.  7  Nevada,  174.     1871. 

§  28.  The  policy  and  the  application  described  the 
premises  insured,  a  distillery,  as  built  of  brick,  adding 
that  the  "  gable  end  is  frame,"  whereas,  the  third  story 


iia 


236 


DISTANCE  OF  OTHER  BUILDINGS. 


was  entirely  of  wood,  and  a  portion  of  the  building  one 
story  high  was  wood.  But,  it  appearing  that  the  assured's 
agent  expressed  himself  to  the  company's  agent  as  uncer- 
tain as  to  correctness  of  the  description,  and  that  the  ques- 
tion of  its  accuracy  was  left  open  to  be  determined  by  cer- 
tain plats  not  then  present;  Held^  it  was  the  proper 
province  of  the  jury  to  pass  upon  these  facts ;  that  it  was 
error  to  assume  the  defense  of  breach  of  warranty  to  be 
true,  and  require  a  finding  for  defendant ;  whether,  if  the 
plats  gave  the  facts  not  disclosed  in  the  application 
and  policy,  the  agent  might  not  have  returned  the  pre- 
mium. Woods  (Assignee  ofTesson)  v.  Atlantic  Mut.  Ins. 
Co.  50  Mo.  112.     1872. 

See  Application,  §  5,  20, 23,  23, 31, 53, 61.   Concealment,  28.   Construction,. 
2,  85.    Evidence,  88.    Parol  Evidence,  8,  37.     Risk,  48.    Title,  88.    Use  and 
Occupation,  66.    Warranty  and  Representation,  14,  15,  16,  18.    What  Prop- 
erty is  Covered  by  Policy,  8. 


DISTANCE  OF  OTHER  BUILDINGS. 

§  1.  Where  assured  represented  the  ground  adjoin- 
ing the  property  to  be  insured  as  "vacant,"  and,  subse- 
quent to  the  insurance,  other  buildings  were  erected; 
Held^  that  there  was  no  continuing  warranty  that  the 
ground  should  remain  vacant  during  the  term  of  policy, 
and  there  being  no  prohibition  in  the  policy  against  the 
erection  of  such  buildings,  the  assured  might  recover. 
Stebbins  v.  Globe  Ins.  Co.  2  Hall,  N.  Y.  632.     1829. 

§  2.  The  insured,  in  reply  to  interrogatory  as  to  the 
distance  of  oth^  buildings,  omitted  to  mention  certain 
wooden  buildings  standing  forty-nine  feet  off  from  the 
building  insured,  on  another  street,  from  which  fire  was 
accidentally  communicated  to  the  property  insured ;  Ileld^ 
that  if,  as  a  man  of  ordinary  capacity,  the  assured  ought 
to  have  apprehended  that  a  fire  originating  in  said  wooden 
buildings  would  have  endangered  his  house,  then  he  ought 
to  have  named  those  buildings  in  reply  to  the  inteiTOga- 


DISTANCE  OP  OTHEB  BUILDINGS. 


237 


iory  propounded ;  for  what  a  man  ought  to  have  known 
he  must  be  presumed  to  have  known.  But  this  knowl- 
edge must  be  something  more  than  that,  by  possibility,  a 
fire  so  originating  might  have  endangered  his  house. 
Dennison  v.  Thomaston  Mut.  Ins.  Co.  20  Me.  125.     1841. 

§  3.  In  reply  to  the  question  in  application  "  as  to  dis- 
tance of  other  buildings,"  answer  was,  "  East  side  of  the 
block,  small  one-story  sheds,  and  would  not  endanger  the 
building  if  they  should  burn."  The  fire  was  communi- 
cated through  one  of  the  buildings  referred  to,  and  caused 
the  destruction  of  the  property  insured.  Held^  that  it 
was  not  a  misrepresentation,  but  an  error  of  judgment,  and 
did  not  avoid  the  policy.  Dennl<=»on  v.  Thomaston  Mut. 
Ins.  Co.  20  Me.  125.     1841. 

§  4.  Where  the  assured,  in  his  written  application,  in 
answer  to  the  following  question,  viz. :  "  Relative  situa- 
tion as  to  other  buildings — distance  from  each,  if  less  than 
ten  rods,"  mentioned  five  buildings,  but  omitted  to  men- 
tion several  others  within  ten  rods,  and  the  policy  con- 
tained the  following  clause :  "  Reference  being  had  to  the 
application  for  a  more  particular  description,  and  as  form- 
ing a  part  of  this  policy;"  Held^  that  the  statement  in  ' 
the  application  was  a  warranty,  and  that  the  existence  of 
other  buildings  within  the  prescribed  distance  avoided  the 
policy,  whether  that  fact  was  "material  to  the  risk  or  not. 
And  where  one  of  the  conditions  of  insurance  was,  that 
any  misrepresentation  or  concealment  in  the  application 
should  render  the  policy  void  and  of  no  effect ;  Held^  that 
any  misrepresentation  or  concealment,  however  immate- 
rial, would  render  the  policy  void.  Burritt  v.  Saratoga 
County  Mut.  Fire  Ins.  Co.  5  Hill,  N.  Y.  188.     1843. 

§  5.  Where  a  by-law  of  a  mutual  company  provided 
that  the  application  should  contain  a  full  description'  of 
certain  thmgs,  among  which  were  the  "  situation  of  in- 
sured })roperty  with  respect  to  other  buildings,"  and  that 
assured  himself  or  the  surveyor  might  make  it,  but  that 
in  either  case  the  assured  should  be  bound  by  the  repre- 
sentations therein  made,  and  the  surveyor  should  be 
deemed  the  agent  of  the  applicant;  and,  in  answer  to  the 
question  in  application,  "  relative  situation  of  other  build- 


'.m\ 


ii 


238 


DISTANCE  OF  OTHER  BUILDmOS. 


! 


ings,  distance  from  each  if  less  than  ten  rods,"  &c. ;  the 
reply  was,  "The  building  in  which  stock  is  deposited  is 
40x90  feet ;  two  stove-pipes  enter  chimneys,  well  secured ; 
the  boiler  of  the  engine  is  carefully  secured  by  «  double 
arch  with  a  flue  passing  into  a  chimney,"  and  upon  the 
trial  it  was  proven  that  the  tannery  and  saw-mill  stood 
within  less  than  five  rods  of  each  other,  and  the  dwelling 
within  less  than  ten  rods  of  both  buildings ;  Ifeld,  that 
the  failure  to  make  known  the  proximity  of  the  buildings 
to  each  other  in  reply  to  the  question,  avoid  ^d  the  policy 
under  the  by-laws  above  mentioned.  Susquehanna  Ins. 
Co.  v.  Perrine,  7  Watts  &  Serg.  Pa.  348.     1844. 

§  6.  Where  the  policy  was  on  mill,  machinery  and 
fixtures ;  and  conditions,  among  other  things,  required  the 
application  to  be  in  writing,  "the  relative  situation  of 
other  buildings  if  within  less  than  ten  rods,"  <fec. ;  and  in 
application  was  the  question,  "  relative  situation  of  other 
buildings  if  within  less  than  ten  rods,"  and  applicant 
failed  to  make  known  all  the  buildings  within  that  dis- 
tance ;  Held,  that  the  condition  had  no  reference  to  any- 
thing but  the  insurance  on  the  building,  and,  so  far  as  it 
was  concerned,  as  well  as  machinery,  there  could  be  no 
recovery ;  but,  that  the  condition  not  referring  to  personal 
property,  assured  might  recover  for  the  loss  of  personal 
property.  Trench  v.  Chenango  County  Mut.  Ins.  Co.  7 
Hill,  N.  Y.  122.     1845. 

§  7.  The  policy  referred  to  the  application  as  forming 
a  part  of  it.  The  conditions  required  that  the  application 
should  state  the  situation  of  the  property  insured;  its 
relative  situation  as  to  other  buildines;  distance  from 
each  if  less  than  ten  rods,  <fec. ;  and  furtner  provided  that 
in  all  cases  the,  assured  should  be  bound  by  the  applica- 
tion, and  that  any  misrepresentation  or  concealment  in 
the  application,  would  render  the  insurance  void.  The 
application  represented  the  building  to  be  insured  to  be  a 
grist  mill,  and  stated :  "  This  mill  is  bounded  by  space  on 
all  sides."  Held,  that  this  amounted  to  a  wan'anty  that 
there  was  no  building  within  ten  rods,  and  as  the  proof 
showed  that  there  was  a  building  within  ten  rods,  the  in- 
surance was  void ;  and  the  fact  that  the  agent  of  the  com- 


DISTANCE  OF  OTHER  BUILDINGS. 


239 


pany  knew  of  the  building,  and  that  the  omission  to  men- 
tion it  in  the  application  was  due  to  his  ignorance,  care- 
lessness or  bad  faith,  made  no  difference.  Jennings  v. 
Chenango  Mut.  Ins.  Co.  2  Denio,  N.  Y.  75.     1846. 

§  8.  In  an  application  for  insurance  on  personal 
property,  which  application  was  referred  to  in  the  policy 
as  forming  part  thereof,  was  written,  in  answer  to  the 
question  "  where  situated,  of  what  materials,  and  size  of 
building,  <fec.,  and  relative  situation  as  to  other  buildings, 
distance  from  each  if  less  than  ten  rods,"  a  description  of 
several  buildings  standing  within  ten  rods  on  the  several 
sides  of  the  one  in  which  the  insu.^ed  goods  were,  but 
several  others  beyond  them,  but  within  the  distance  of  ten 
rods,  were  not  mentioned.  On  the  above  facts,  the  court 
say,  "I  think  there  can  be  no  doubt,  but  that,  had  this 
been  an  insurance  upon  real  estate,  the  statement  as  to  the 
distance  of  the  buildings  would  have  been  a  warranty. 
But  it  is  said  that  the  rule  is  different  in  case  of  personal 
property.  If  this  be  law,  I  doubt  very  much  whether  it 
18  applicable  where  personal  property  only  is  insured,  and 
the  statement  respecting  other  buildings  within  ten  rods 
can  only  refer  to  those  within  ten  rods  of  that  in  which 
the  goods  are  kept."  Sexton  v.  Montgomery  County  Mut» 
Ins.  Co.  9  Barb.  N.  Y.  191.    1848. 

§  9.  Application  was  referred  to  and  made  part  of 
the  policy ;  and,  in  answer  to  question  as  to  relative  dis- 
tance of  other  buildings  within  ten  rods,  assured  failed  to 
state  one  or  more  within  that  distance.  Held,  that  it  was 
a  breach  of  warranty  that  avoided  the  policy.  Frost  v. 
Saratoga  County  Mut.  Ins.  Co.  5  Denio,  N.  Y.  154.     1848. 

§  10.  Where  the  question  in  application,  which  wa? 
referred  to  and  made  part  of  the  policy,  was  as  follows ;. 
"  How  bounded,  and  distance  from  other  buildings  if  less 
than  ten  rods,"  &c. ;  and  the  answer  stated  all  the  nearest 
buildings  on  each  side  of  the  property  insured,  but  did 
not  state  all  the  buildings  within  ten  rods ;  Heldy  that  the 
answer  was  sufficient,  for  the  question  required  the  dis* 
tance  from  the  nearest  buildings  if  within  ten  rods,  not 
the  distance  from  all  buildings  within  ten  rods.  Gates  v. 
Madison  County  Mut.  Ins.  Co.  2  Comst.  N.  Y.  43.     1848. 


&• 


240 


DISTANCE  OF  OTHER  BUILDINGS. 


1851.    3  Barb.  N.  Y.  73. 


Same  case,  1  Seld.  N.  Y.  469. 
1848,  reversed. 

§  11.  Application  was  referred  to  as  forming  part  of 
the  policy,  one  question  of  which  was :  "  How  bounded, 
and  distance  from  other  buildings  if  less  than  ten  rods," 
<fec.  The  surveyor  and  agent  of  the  company,  who  by  a 
condition  of  policy  was  made  the  agent  of  the  applicant, 
examined  the  premises  alone,  and  put  in,  as  answer  to  the 
question,  the  nearest  buildings,  without  mentioning  others 
that  were  within  ten  rods.  Held^  that  the  putting  down 
the  nearest  buildings  only,  did  not  amount  to  a  warranty" 
that  there  were  no  others  within  the  distance  of  ten  rods, 
and  that,  if  there  were  other  buildings,  it  only  amounted 
to  a  withholding  information  called  for  by  the  interroga- 
tory, upon  which  the  question  would  arise  whether  it  is 
material  to  the  risk,  which  is  a  question  of  fact  proper  to 
be  submitted  to  the  jury.  Masters  v.  Madison  County, 
Mut.  Ins.  Co.  11  Barb.  N.  Y.  624.     1851. 

§  12.  Where,  in  an  insurance  on  goods,  the  applica- 
tion was  referred  to  as  forming  part  of  the  policy,  and  the 
assured,  in  answer  to  a  question  in  the  application,  failed 
to  state  all  the  buildings  within  ten  rods ;  Held^  that  the 
statement  in  the  application  was  a  warranty  that  no  other 
buildings  than  those  mentioned  existed  within  ten  rods, 
and  that  his  failure  to  name  all  avoided  the  policy,  al- 
though the  agent  of  the  company  filled  up  the  application, 
and  knew  of  the  existence  of  the  other  buildings.  Ken- 
nedy v.  St.  Lawrence  County  Mut.  Ins.  Co.  10  Barb.  N.  Y. 
285.     1851. 

§  13.  In  a  policy  on  merchandise  containing  same 
condition  in  policy  and  question  in  application  as  in  5 
Hill,  188,  ants^  §  4,  and  where  application  was  made  out 
by  the  agent  of  the  company,  but  signed  by  the  assured, 
and  such  application  omitted  to  disclose  several  buildings 
within  ten  rods,  the  policy  was  held  void  as  to  merchan- 
dise, overruling  the  distinction  taken  in  7  Hill,  122,  anie^ 
§  6.  Wilson  V.  Herkimer  County  Mut.  Ins.  Co.  2  Selden, 
N.  Y.  53.     1852. 

§  14.    Where  insured  in  his  application  stated  that 


,IJ. 


DISTANCE  OP  OTHER  BUILDEIfGS. 


241 


two  buildings  were  to  be  moved  fifteen  feet,  and  a  loss  oc- 
curred before  removal;  Held,  msuved  was  entitled  to  a 
reasonable  time  to  remove  them,  and  what  was  a  reason- 
able time  was  a  question  for  the  jury.  Lindsay  v.  Union 
Mut.  Fire  Ins.  Co.  3  R.  I.  157.     1855. 

§  15.  A  question  in  application  as  to  relative  situa- 
tion of  other  buildings,  was  answered  as  follows:  "A 
dwelling-house  and  cabinet-maker's  shop,  'with'  fifty 
feet ;"  Held,  that  the  true  construction  of  the  answer  was, 
that  the  buildings  were  "  within "  fifty  feet,  and  the  an- 
swer was  correct,  although  one  of  the  buildings  was  with- 
in three  feet ;  also,  that  being  the  construction  of  a  written 
instrument,  where  no  question  arose  as  to  the  use  of 
words  of  art,  it  was  a  question  for  the  court  to  determine. 
Allen  V.  Charlestown  Mut.  Ins.  Co.  5  Gray,  Mass.  384. 
1855. 

§  16.  Where  policy  provided  that  representations 
should  be  deemed  warranties,  and  the  insured,  in  reply  to 

Question  as  to  adjacent  buildings,  said,  "see  diagram;" 
Teldj  that  there  was  no  warranty  of  the  correctness  of  the 
diagram.  Sayles  v.  Northwestern  Ins.  Co.  2  Curtis  C.  C. 
IJ.  S  610.     1856. 

§  17.  Relative  situation  of  other  buildings  being  re- 
quired in  application,  which  was  expressly  made  part  of 
the  policy,  the  assured  answered:  "Dvielling  about  four 
feet  distant  on  one  side;  about  fifteen  feet  to  small  dwell- 
ing and  store-house."  At  bottom  of  application  assured 
stipulated  that  above  was  a  full  and  true  exposition  of  all 
facts,  <fec.,  "  so  far  as  the  same  are'lcnown  to  the  applicant." 
It  appeared  in  evidence  that  there  were  several  other 
buildings  on  other  sides  of  the  property  insured,  besides 
those  mentioned  in  the  application.  Held,  that  if  the  ex- 
istence of  these  other  buildings  was  not  known  to  the 
assured  or  his  agent  who  made  the  application,  the  omis- 
sion to  mention  them  would  not  prevent  a  recovery.  If 
the  insurers  desired  more  exact  information,  other  ques- 
tions should  have  been  put  accordingly.  Hall  v.  Peo[)le's 
Mut.  Ins.  Co.  6  Gray,  Mass.  185.     1856. 

§  18.    The  application,  which  was  expressly  referred 
18 


'<ni 


242 


DISTANCE  OF  OTHER  BUILDINGS. 


to  in  the  policy  as  forming  a  part  of  it,  contained  this, 
among  other  questions :  "  Relative  situation  of  other  build- 
ings ;  distance  from  each  within  ten  rods ;  for  what  pur- 
pose occupied."  In  reply  assured  simply  named  several 
buildings.  At  the  bottom  of  the  application  was  this 
statement,  just  above  the  signature;  "All  of  the  expo- 
sures within  ten  rods  are  mentioned."  Held^  that  giving 
the  language  used  a  fair  construction,  assured  must  be  re- 
garded as  asserting  that  the  buildings  named  were  all  the 
buildings  within  ten  rods';  and,  it  appearing  that  there 
were  other  buildings  not  named  withm  that  distance,  he 
could  not  recover.  The  word  "  exposures,"  at  the  foot  of 
the  application,  does  not  limit  the  answer  required  to  a 
statement  of  those  buildings  from  which  danger  of  fire  was 
to  be  apprehended.  Chaffee  v.  Cattaraugus  County  Mut. 
Ins.  Co.  18  N.  Y.  376.     1858. 

§  19.  Where  the  application  contained  the  interroga- 
tory, "  Relative  situation  as  to  other  buildings,  distance 
from  each  within  ten  rods,"  to  which  assured  replied  by 
specifying  several  buildings,  with  distances;  Held^  that 
this  constituted  a  warranty  that  there  were  no.  other 
buildings  within  ten  rods  of  the  stores  insured,  which  ex- 
posed them  to  loss  or  injury  by  fire.  And  Judge  Strong, 
who  writes  the  opinion,  states  that  the  assured  cannot  in- 
troduce evidence  to  show  as  matter  of  estoppel,  that  the 
agent  of  the  companjr  prepared  the  application  and  an- 
swers, which  were  assigned  by  assured,  on  the  strength  of 
the  agent's  statement,  that  they  were  correct. 

When  in  reply  to  saui  interrogatory  in  the  application, 
assured  mentioned  certain  buildings,  and  stated  that  they 
were  contiguous  to  other  buildings ;  the  general  expres- 
sion "  other  buildings,"  embraces  all  buildings  not  speci- 
fied, and  there  is  no  warranty  that  there  are  no  other 
buildings  than  those  specified.  Brown  v.  Cattaraugua 
County  Mut.  Ins.  Co.  18  N.  Y.  385.     1858. 

In  36  N.  Y.  550,  it  is  said,  that  the  rule  as  to  agents  in 
this  case  is  changed  by  the  case  of  Pluttb  v.  Cattaraugus 
Ins.  Co.  18  N.  Y.  392,  5wpra,  p.  94. 

§  20.  The  application  contained  this  interrogatory: 
"  What  is  the  distance  and  direction  of  said  building  from 


DISTANCE  OF  OTHER  BUILDINGS. 


243 


other  buildings  within  one  hundred  feet?  Annex  a 
ground  plan  to  the  application."  Assured  replied :  "  See 
diagram."  The  diagram  did  not  show  all  the  buildings 
within  one  hundred  feet.  The  application  was,  by  tne 
terms  of  the  policy,  made  a  part  of  it  and  a  warranty  on 
the  part  of  assured.  Held,  that  there  was  a  warranty  by 
assured,  that  his  diagram  stated  all  buildings  within  one 
hundred  feet ;  and,  as  it  did  not  do  this,  he  could  not  re- 
cover. Tebbetts  v.  Hamilton  Mut.  Ins.  Co.  1  Allen,  Mass. 
305.     1861. 

§  21.     Policy  stipulated  that  "  applications  for  insur- 
ance must  specify  the  construction  and  material  of  build- 
ings within  eight  rods  of  the  risk  or  property  to  be  in- 
sured;"   and  in  the  application,  which  was  referred  to 
and  made  part  of  the  policy  and  warranty  on  the  part  of 
the  insured,  was  this  question :  "  State  distance,  occupation 
and  materials  of  other  buildings,"  answered  as  follows : 
"  North  20  feet,  brick  dwelling ;  east  30  feet  to  alley  and 
no  exposure;  south  ^4  feet,  street;  west  64  feet,  street." 
The  evidence  showed  that  there  were  a  number  of  other 
buildings  within  the  eight  rods,  not  mentioned  in  the  an- 
swer of  assured,  and  also  that  the  agent  of  the  company, 
intrusted  with   blank  policies  and  empowered  to  make 
contracts  of  insurance,  not  only  filled  up  the  application 
in  question,  but  also  k^new  of  the  existence  of  all  the 
buildings  not  mentioned  by  assured.     Held,  that  there 
waa  a  difference  between  a  surveyor,  only  authorized  to 
receive  and  forward  applications  to  the  company,  and  an 
agent  authorized  to  issue  policies,  and   that  the   latter 
stood  in  place  of,  and  for  the  purpose  of  making  insur- 
ances was  the  company,  and  in  accepting  an  application 
in  which  some  of  the  questions  were  not  fully  answered, 
and  issuing  a  policy  thereupon  with  a  full  knowledge  of 
the  state  of  facts  existing  as  to  the  other  buildings,  the 
company  could  not  set  up  in  defense  the  failure  on  the 
part  of  assured  to  answer  more  fully  the  questions,  as  a 
misrepresentation   or  breach   of  warranty  avoiding  the 
contract.      Longhurst  v.  Conway  Fire  Ins.  Co.  U.  S.  Dis. 
Ct.  Northern  Division,  Iowa,  October.     1861. 

§  22,    Where  the  assured  signed  the  application  in 


i 


;ii 


244 


DIVIDENDS. 


blank,  and  agreed  with  the  agent  that  the  latter  should 
make  the  survey,  and  it  was  so  filled  up  as  not  to  show 
correctly  the  occupancy  and  distance  of  other  buildings 
within  six  rods,  but  the  aojent  knew  the  situation  and  oc- 
cupancy of  the  same ;  Held^  first,  that  the  question,  whether 
there  had  been  a  misrepresentation  or  concealment  mate- 
rial to  the  risk,  on  the  part  of  the  assured,  was  for  the 
jury  to  determine;  second,  that  notwithstanding  a  by-law 
which  provided  that  "in  case  the  application  is  made 
through  an  agent,  the  applicant  shall  be  held  liable  for 
the  representation  of  such  agent,"  the  company  were 
chargeable  with  the  knowledge  of  the  agent,  and  were 
estopped  to  set  up  a  misrepresentation  or  concealment  of 
such  facts  as  a  defense;  and  that  the  agent  need  not 
have  a  personal  knowledge,  by  acquaintance  with  or  ex- 
amination of  the  premises,  but  that  knowledge  derived 
from  any  source,  would  be  sufficient  to  estop  the  company. 
Clark  V.  Union  Mut.  Fire  Ins.  Co.  40  N.  H.  333.     1860. 

See  Application,  §  '<i9,  32,  46.  Concealment,  11.  Construction,  10.  In- 
crease of  Risk,  1,  2, 10.  Questions  for  Court  and  Jury,  9.  What  Property 
is  Covered  by  the  Policy,  22. 


DIVIDENDS. 

§  1.  The  interest  on  the  capital  stock  and  the  pre- 
miums constitute  the  ordinary  fund  out  of  which  losses 
are  to  be  paid ;  and  the  surplus  of  that  fund,  after  paying 
such  losses,  aie  the  surplus  profits,  which  alone  are  to  be 
divided  among  the  stockholders.  The  capital  is  security 
for  extraordin^  y  losses.  Unearned  premiums  are  surplus 
funds,  but  not  surplus  profits;  and  should  not  be  divided 
without  leaving  enough  on  hand  to  meet  probable  losses. 
De  Peyster  v.  American  Fire  Tns.  Co.  6  Paige  Ch.  N.  Y. 
4H6.  1887.  Scott  V.  Eagle  Fire  Ins.  Co.  7  Paige  Ch.  N. 
Y.  198.     1838. 

§  2.  A  creditor  for  money  loaned,  in  the  absence  of 
express  contract,  has  no  special  lien  on  the  surplus  funds 
of  a  company,  and  no  preference  over  any  other  creditor 


T 


DIVIDENDS. 


245 


in  the  distribution  of  such  funds.    De  Peyster  v.  Ameri- 
can Ins.  Co.  6  Paige  Ch.  N.  Y.  486.     1837. 

§  3.  A  corporation  is  not  justifiable  in  treating  as 
profits,  subject  to  be  divided,  premiums  received  upon  un- 
expired risks,  when  it  has  not  a  fund  sufficient,  independ- 
ent thereof,  to  meet  all  liabilities  that  might  accrue  on  the 
pending  risks.  Lexington  Life,  Fire  &  Marine  Ins.  Co. 
V.  Page,  17  B.  Monroe,  Ky.  412.     1856. 

§  4.  "When  suit  was  brought  against  the  directors 
and  stockholders  of  an  insurance  company  by  a  creditor, 
five  years  after  the  declaration  of  an  illegal  dividend  to 
the  stockholders;  Held,  that  dividends  declared  by  the 
directors  and  received  by  the  stockholders,  may  be  re- 
claimed by  the  directors,  if  illegally  declared  under  a  mis- 
apprehension of  the  right  to  declare  them ;  and  if  there 
be  an  assignment  by  the  corporation  to  a  trustee,  such 
right  to  reclaim  dividends,  improperly  paid,  passes  to  the 
assignee,  if  the  terms  of  the  assignment  are  sufficiently 
comprehensive  to  embrace  them.  Lexington  Life,  Fire  & 
Manne  Ins.  Co.  v.  Page,  17  B.  Monroe,  Ky.  412.     1856. 

§  5.  Independent  of  any  specific  agreement  between 
insurers  and  the  insured,  the  ordinary  currency  of  the 
country  would  be  considered  as  the  basis  upon  which  the 

f)olicies  were  issued,  and  upon  which  any  settlement  of 
osses  incurred  should  be  Inade,  and  profits  realized.  But 
where  there  is  a  special  contract  that  the  premiums  shall 
be  paid  in  gold,  and  the  losses  be  paid  in  the  same  cur- 
rency, the  company  on  declaring  its  dividends  should 
allow  the  holders  of  such  policies  a  certificate  for  their 
share  of  the  profits  in  accordance  with  a  gold  standard,  as 
compared  with  currency.  Luling  v.  Atlantic  Mut.  Ins. 
Co.  45  Barb.  N.  Y.  516.     1865. 

§  6.  The  assured  paid  his  premiums  in  gold  coin,  in 
consideration  of  which  the  insurers  agreed  to  pay  his  losses, 
if  any,  in  gold  coin.  Held,  the  agreement  extended  only 
to  payment  of  losses ;  there  was  no  express  or  implied  ob- 
ligation to  pay  the  assured  any  dividend  or  contingent 
profits  in  gold  coin.  Luling  v.  Atlantic  Mut.  Ins.  Co.  50 
Barb.  520.     1868. 

See  Mutual  Companies  and  Members  of,  §  12.    Receiver,  8. 


f 


DURATION. 

§  1.  Policy  against  loss  by  lire  from  half  year  to  half 
year,  premium  to  be  paid  half  yearly,  within  fifteen  days 
after  the  expii-ation  of  the  former  half  year,  as  long  as  in- 
surers should  agree  to  accept  the  same,  with  stipulation 
that  there  should  be  no  insurance  until  the  premium  was 
actually  paid.  The  loss  happened  within  fifteen  days 
after  the  expiration  of  a  half  year,  but  before  the  pre- 
mium for  a  succeeding  half  year  had  been  paid.  Ileld, 
that  the  insurers  were  not  liable,  though  the  premium  was 
tendered  within  the  fifteen  days.  Tarleton  v.  Staniforth, 
5  Durnf.  and  East.  695,  34  Geo.  Ill;  affirmed  in  Ex- 
chequer Chamber,  1  Bos.  <fe  Pul.  471.  Same  case,  3  Ans- 
truther,  707.     1796. 

§  2.  By  a  policy  under  seal,  referring  to  certain 
printed  proposals,  a  fire  office  insured  certain  premises 
from  11th  November,  1802,  to  25th  December,  1803,  for  a 
certain  premium,  which  was  to  be  paid  yearly  on  each  25th 
December,  and  the  insurance  was  to  continue  so  long  as 
the  insured  should  pay  the  premiums  at  the  said  times  and 
the  office  should  agree  to  accept  it.  By  the  printed  pro- 
posals, it  was  stipulated  that  the  assured  should  make  all 
future  payments  annually  at  the  office,  Avithin  fifteen  days 
after  the  day  limited  by  the  policy,  under  penalty  of  for- 
feiture of  the  benefit  thereof,  and  that  no  insurance  was 
to  take  place  until  the  premium  was  paid.  By  a  subse- 
quent advertisement  (agreed  to  be  taken  as  a  part  of  the 
policy),  the  office  engaged  that  all  persons  insured  there 
by  policies  for  a  year  or  more  had  been  and  should  be  con- 
sidered as  insured  for  fifteen  days  beyond  the  time  of  ex- 
piration of  their  policies.  Before  the  expiration  of  the 
year,  the  office  notified  the  assured  that  they  would  not 
continue  the  insurance,  unless  he  paid  an  increased  pre- 
mium ;  to  which  assured  replied  that  he  would  not  pay 
the  increase  of  premium.  Ileld^  that  the  office  was  not 
liable  for  a  loss,  which  happened  within  the  fifteen  days 
from  the  expiration  of  the  year  for  which  the  insurance 
was  made,  although  the  assured,  after  the  loss  and  before 


1 


ENCUMBRANCE. 


247 


the  fifteen  days  expired,  tendered  the  increased  premium 
which  had  been  demanded.  The  effect  of  the  whole  con- 
tract, <fec.,  taken  together,  being  only  to  give  the  assured 
the  option  to  continue  the  insurance  or  not,  during  the 
fifteen  days  after  the  expiration  of  the  year,  by  paying 
the  premium  for  the  year  ensuing,  notwithstanding  any 
intervening  loss,  provided  the  ofiice  had  not,  before  the 
end  of  the  year,  determined  the  option  by  giving  notice 
that  they  would  not  renew  the  contract.  Salvin  v.  Langs- 
ton,  6  East,  571.     1805. 

§  3.  Policy  for  a  year,  with  condition  that  "  no  policy 
will  be  considered  valid  for  more  than  fifteen  days  after 
the  expiration  of  the  period  limited  therein,  unless  the 
premium,"  «fec.,  are  paid.  And  in  case  of  assurances  for  a 
less  period  than  a  year,  they  "  will  terminate  at  six  o'clock 
on  the  evening  of  the  day  specified  with  the  allowance  of 
fifteen  days."  Held^  in  effect,  an  insurance  for  one  year 
and  fifteen  days.  McDowell  v.  Carr,  Hayes  &  Jones,  256. 
1833. 

§  4.  A  policy  of  insurance  upon  merchandise  con- 
tinues in  force  so  lon»  as  the  goods  remain  in  the  building 
specified  therein,  during  the  time  it  has  to  run,  unless  the 
contract  is  modified  by  the  assent  of  both  parties.  Insurers 
who  are  bound  by  the  terms  of  the  policy,  for  a  loss  occur- 
rina:  during  the  time  covered  bv  it,  if  they  claim  any 
variation  ot  their  origin&l  responsibility  by  a'  new  agree- 
ment, must  establish  it  by  clear  and  indubitable  evidence. 
Kunzze  v.  American  Exchange  Fire  Ins.  Co.  2  Robert. 
N.  Y.  443.     1864. 

See  Covenants  to  Insure,  §  4.    Premium  Notes,  29. 


I 


I 


ENCUMBRANCE. 

§  1.  Bill  to  enforce  collection  of  quotas  against  prem- 
ises, which  were  mortgaged  when  declaration  for  insurance 
was  made.  Held^  that  the  Virginia  acts,  1794  and  1795, 
governing  in  this  case,  did  not  contemplate  insurance  of 
mortgaged  estates,  or  other  than  fee  simple  estates,  and 


I 

(  i 


248 


EXCUMBRANCE. 


1 


that  the  insurance  was  void.  Bill  dismissed.  Ingrams  v. . 
Mutual  Assurance  Society,  1  Rob.  Va.  661.     1843. 

§  2.  Where  policy  required  a  disclosure  of  the  extent 
and  nature  of  the  interest,  if  less  than  a  fee  simple,  to- 
gether with  every  encumbrance  calculated  to  affect  the  in- 
terest, and  a  mortgagee  insured  his  mortgagee  interest,  but 
failed  to  disclose  the  existence  of  other  mortgages  on  the 
same  property  ;  Held^  that  the  policy  was  void.  Addison 
V.  Kentucky  <fe  Louisville  Ins.  Co.  7  B.  Monroe,  Ky.  470. 
1847. 

§  3.  A  failure  on  part  of  the  assured  to  disclose  the 
existence  of  a  mortgage  on  the  property,  is  not  a  circum- 
stance material  to  the  risk,  and  will  not  avoid  the  policy. 
(Case  does  not  sav  whether  inquiry  was  made  or  not.) 
Delahay  v.  Memphis  Ins.  Co.  8  Humphrey,  Tenn.  684. 
1848. 

§  4.  Where  reference  was  had  to  application,  as  form- 
ing part  of  the  contract,  and  application  declared  that,  if 
assured  "  shall  suffer  a  judgment  or  decree,  operating  as  a 
liei>  on  said  property,  or  any  part  thereof,  to  pass  against 
him,  the  policy  shall  be  void,  unless  he  shall  make  a  repre- 
sentation thereof  in  writing  to  the  directors."  Held^  that 
this  clause  constituted  an  express  warranty,  and,  if  a  breach 
should  be  shown,  the  policy  was  void.  Egan  v.  Mutual 
Ins.  Co.  of  Albany,  5  Denio,  N.  Y.  326.     1848. 

§  5.  An  untrue  answer  in  application,  in  reply  to  a 
question  respecting  encumbrances,  renders  the  policy  void 
in  a  mutual  company.  And  it  makes  no  difference  that 
the  company  was  incorporated  under  the  laws  of  another 
State,  and  whether  or  not  they  were  entitled  to  a  lien  on 
the  premises  insured.  Davenport  v.  New  England  Mut. 
Ins.  Co.  6  Cush.,Mass.  340.     1850. 

§  6.  The  agent  of  the  company  went  to  examine  and 
make  survey  of  a  mill  to  be  insured,  and  wasaccompaT'ied 
by  the  son  of  the  applicant,  and,  at  the  time  of  mn  't  ^  the 
application,  the  son  informed  the  agent  of  the »  ace  of 

a  mortgage  on  the  premises,  but  agent  did  no  ut  it  in 
the  application.  There  was  a  by-law  of  the  company, 
making  the  surveyor  the  agent  of  the  applicant,  but  none 


ENCUMBRANCE. 


24^ 


requiring  a  disclosnre  of  encumbrances,  though  in  the 
application  there  was  this  question :  "  What  encumbrances, 
iif  any,  on  the  premises?"  Ileld^  that  the  notice  to  the 
agent  was  sufficient  notice  to  the  company  of  the  existence 
of  the  mortgage.  Masters  v.  Madison  County  Mut.  Ins. 
Co.  11  Barb.  N.  Y.  624.     1851. 

§  7.  Where  the  insured  effected  a  policy  on  a  certain 
mill,  machinery,  tools  and  lot,  his  interest  being  stated  to 
be  a  mortgage  for  $4,000  on  said  property,  and,  after  loss, 
it  turned  out  that  he  held  two  other  prior  mortgages  on 
the  real  estate  and  machinery,  which  were  not  disclosed 
(no  inquiry  having  been  made  concerning  them) ;  Heldy 
that  the  only  interest  insured  was  that  under  the  $4,000 
mortgage  ;  and  that  the  existence  of  the  prior  mortgages 
was  material,  and  should  have  been  disclosed.  Smith  v. 
Columbia  Ins.  Co.  17  Penn.  St.  253.     1851. 

§  8.  The  application  represented  the  premises  to  be 
mortgaged  for  $2,000,  and  the  applicant  took  a  policy 
payable,  in  case  of  loss,  to  the  mortgagee.  The  encum- 
brance, in  fact,  amounted  to  $3,800.  luld^  that  this  was 
a  material  misrepresentation,  and  avoided  the  policy ;  and 
that  the  misrepresentation  was  not  relieved  or  excused  by 
the  fact  that  an  agent  and  director  of  the  company  assisted' 
the  assured  in  drawing  it  rp.  Lowell  v.  Middlesex  Mut. 
Fire  Ins.  Co.  8  Cush.  Mass.  127.     1851. 

§  9.  The  application  contained  the  following  clause : 
"  And  the  said  applicant  covenants  and  agrees  with  said 
company  that  the  foregoing  is  a  correct  description  of  the 
property  requested  to  be  insured,  so  far  as  regards  the 
risk  on  the  same."  It  also  contained  the  following  clause : 
"  The  applicant  will  bear  in  miud  that  the  misrepresenta- 
tion or  suppression  of  material  facts  will  destroy  his  claim 
for  a  damage  or  loss."  Held^  that  the  phrase,  "  so  far  as 
regards  the  risk,"  in  the  case  of  this  insurance,  did 'not 
limit  and  confine  the  general  rule — which  avoids  policies 
for  false  representations — ^to  those  representations  that  re- 
late to  the  exposure.  And  as  the  assured,  in  this  case, 
stated  that  there  were  no  encumbrances,  when  there  were 
several  mortgages,  his  policy  was  void.  Friesmuth  v. 
Agawam  Mut.  Ins.  Co.  10  Cush.  Mass.  588.     1852. 


;ll 


m 


:■,'; 


:4;. 


lis 


250 


BNOUMBRANOE. 


§  10.  If  the  property  is  represented  as  unencumbered, 
wten  in  fact  it  has  been  sold  for  taxes,  it  is  a  misrepre- 
sentation that  will  avoid  the  policy.  Wilbur  v.  Bowditch 
Mut.  Ins.  Co.  10  Cush.  Mass.  446.     1852. 

§  11.  "Where  applicant  stated  that  the  premises  to  be 
insured  were  encumbered  for  "about  $3,000,"  when  in 
fact  there  was  a  mortgage  on  them  for  $4,000 ;  Held^  that 
the  representation  as  to  encumbrance  was  a  material  one, 
which  assured  was  bound  to  make  substantially  true ;  and 
that  having  failed  to  do  so,  he  could  not  recover.  Hay- 
ward  V.  New  England  Mut.  Ins.  Co.  10  Cush.  Mass.  444. 
1852. 

§  12.  Where  charter  provided  that,  "  if  the  premises 
be  encumbered,  the  policy  shall  be  void,  unless  the  true 
title  of  the  assured  and  encumbrances  thereon  be  ex- 
pressed," and  in  application,  which  was  made  part  of  the 
policy,  in  answer  to  the  question,  "  What  is  the  title  and 
whether  encumbered  ?"  assured  replied,  "  on  leased  ground, 
six  years  to  run,"  but  did  not  mention  a  deed  of  trust  for 
$600  then  on  house  and  lot ;  Held^  that  the  -failure  to  dis- 
close that  fact  avoided  the  policy,  whether  material  or 
not,  as  the  representations,  being  referred  to  and  made 
part  of  the  policy,  became  warranties.  Loehner  v.  Home 
Mut.  Ins.  Co.  17  Mo.  247.     1852. 

§  13.  Policy  covered  real  and  personal  property.  In 
reply  to  the  question  in  the  application,  "  is  the  property 
encumbered?"  answer  was  made,  "  mortgage  about $4,000 
to  A.  B.,"  when  in  fact  there  two  mortgages — one  for 
$3,600  to  A.  B.  on  real  an< !  ^^ersonal  property,  and  one  to 
J.  P.  on  real  estate  for  $1,100.  Held^  that  the  misrepre- 
sentation avoided  the  policy,  both  as  to  real  and  personal 
property.  Brown  v.  People's  Mut.  Ins.  Co.  11  Cush.  Mass. 
280.     1853. 

§  14.  If  a  representation  as  to  encumbrances  upon  the 
property  is  untrue,  but  not  fraudulently  made,  and  the 
agent  of  the  company  knows  the  true  state  of  the  facts, 
and  writes  the  statement  from  his  own  knowledge,  and 
fails  to  state  it  trulv;  such  misrepresentation  will  not  avoid 
the  policy,  although  the  statement  is  adopted  and  signed 


ENCUMBRANCE. 


251 


by  the  agent  of  the  insured.    Protection  Ins.  Co.  v.  Har- 
mer,  2  Ohio  St.  452.     1853. 

§  15.  By  a  condition  annexed  to  a  policy  of  insur- 
ance, it  was  declared  that,  in  case  an  "encumbrance 
should  fall  or  be  executed  upon  the  property  insured, 
sufficient  to  reduce  the  real  interest  of  the  insured  in 
the  same  to  a  sum  only  equal  to  or  below  the  amount 
insured,  and  the  insured  should  neglect  or  fail  to  obtain 
the  consent  of  the  company  thereto,  then  and  in  that  case 
the  policy  should  be  void."  The  policy  was  on  personal 
property,  which  was  afterwards  mortgaged  to  an  accom- 
modation endorser,  and  the  policy  was  assigned  to  the 
mortgagee  with  the  consent  of  the  company.  Held^  that 
there  continued  to  be  an  insurable  int  rest,  and  that  the 
policy  remained  good  notwithstanding  the  mortgage,  and 
no  matter  whether  the  mortgagor  or  mortgagee  was  to  be 
deemed  "  the  insured  "  within  the  meaning  of  the  condition. 
Allen  V.  Hudson  River  Mut.  Ins.  Co.  19  Barb.  N.  Y.  442. 
1854. 

§  16.  In  reply  to  the  question  in  application  as  to 
encumbrances,  the  assured  truly  stated  the  encumbrances 
then  existing,  but,  after  making  the  application  on  the, 
17th  of  July,  on  25th  of  same  month,  when  policy  was 
signed,  he  had  mr,de  another  mortgage  on  the  premises  for 
$5,000,  and  on  the  ll^th  of  October  following,  a  second 
one  for  $1,100.  The  company  defended  on  this  ground, 
bud  it  was  Held^  that  there  was  no  misrepresentation  as 
to  encumbrances,  the  assured  having  stated  truly  those 
existing  at  the  time  of  application.  Howard  Ins.  Co.  v. 
Bruner,  23  Penn.  St.  50.     1854. 

§  17.  A.  made  a  written  application  for  insurance  on 
the  5th  of  October,  and  represented  the  property  as  "  free 
of  all  encumbrance."  The  policy  was  not  made  out  until 
the  11th  of  October,  and,  in  the  interval,  after  making 
application  and  before  the  execution  of  the  poli^,  A.  exe- 
cuted a  mortgage  on  the  insured  property.  Held,  that 
the  insured  was  not  required  to  notify  the  company  of  the 
mortgage,  as  the  charter  and  bylaws  did  not  demand  any 
notice  of  subsequent  encumbrances.  Dutton  v.  New  En- 
gland Mut.  Fire  Ins.  Co.  9  Fost.  N.  H.  153.     1854. 


252 


ENCUMBRANCE. 


§  18.  Policy  was  issued  subject  to  the  conditions  and 
bylaws  attached,  one  of  which  required  a  "  true  represent- 
ation from  assured  as  to  title,  interest,  and  encumbrances." 
Held^  that  a  failure  on  part  of  assured  to  disclose  a  mort- 
gage, in  reply  to  the  inquiry  on  that  subject  in  the  applica- 
tion, avoided  the  policy,  although  the  mortgage  was  not 
recoi  ded  till  after  the  making  of  the  policy.  And  the  fact 
that  insured  did  not  acquire  title  till  after  the  date  of 
the  mortgage,  was  immaterial ;  for  the  mortgage  contained 
covenants  of  warranty,  and  he  was  estopped  from  denying 
his  title.  Packard  v.  Agawam  Mut.  Fire  Ins.  Co.  2  Gray, 
Mass.  334.     1854. 


19.  The  policy  required  notice  of  encumbrances, 
and  it  was  claimed  to  be  void  because,  under  a  prior  policy 
which  had  become  void,  the  insured  had  incurred  a  liabil- 
*ity  for  assessments,  which  were  a  lien  on  the  property. 
Whether  such  liability  constituted  an  encumbrance  within 
the  meaning  of  the  condition,  left  undecided ;  but  Held^ 
ih&tj  prima  facie,  such  liability  ceased  with  the  former 
policy,  and  that  the  question  whether  or  not  there  was 
any  such  liability,  was  for  the  jury.  Jackson  v.  Farmers* 
Mut.  Fire  Ins.  Co.  5  Gray,  Mass.  62.     1855. 

§  20.  The  application  covenanted  for  a  full  and  true 
ejcposition  of  all  facts,  so  far  as  material  to  the  risk. 
But  the  by-laws,  to  which  the  policy  was  in  terms  made 
subject,  required  the  applicant  to  make  a  true  repre- 
sentation of  his  title  and  interest  in  the  property  in- 
sured. The  insured  omitted  to  disclose  a  mortgage. 
Held,  that  his  policy  was  void,  and  that  it  was  irrelevant 
to  inquire  whether  the  omission  was  material  to  the  risk. 
Bowditch  Mut.  Fire  Ins.  Co.  v.  Wiuslow,  3  Gray,  Mass. 
415.     1855. 

§  21.  The  application  was  referred  to,  made  part  of 
the  policy,  and  signed  by  the  assured.  In  reply  to  the 
question,  "  Is  the  property  encumbered  ?  if  so,  how  much,, 
and  to  whom  ?"  assured  answered,  "Mortgaged  for  $1,100, 
to  Wm.  Cressy."  In  fact  there  waa  another  mortgage  of 
$1,200  to  B.  previously  existing,  but  Cressv  had  agreed 
to  apply  all  payments  on  his  mortgage  to  the  extinguish- 
ment of  the  B.  mortgage,  and  had  placed  the  notes  and 


ENOUMBRANOB. 


253 


mortgage  in  the  hands  of  a  third  party  for  that  purpose. 
Held^  that  as  the  B.  mortgage  was  $100  in  excess  of  the 
Cressy  mortgage,  there  had  been  a  misrepresentation  that 
avoided  the  policy.  Battles  v.  York  County  Mut.  Ins.  Co. 
41  Me  208.     1856. 

§  22.  Policy  made  a  warranty  of  application,  and  re- 
quired therein  a  recital  ^of  all  encumbrances.  The  appli- 
cp^'-^n  in  fact  did  not  reply  to  the  interrogatory  on  this 
g  '  'ect,  but  the  agent  was  informed  of  a  mortgage  of 
V.  Lich  he  did  not  notify  the  company.  At  expiration  of 
this  policy,  a  renewal  of  policy  on  verbal  request  was 
issued,  when  the  agent  filled  up  an  application  and  sent 
the  same,  unsigned,  to  the  company.  At  its  expiration,  a 
second  renewal  policy  was  executed,  and  another  unsigned 
application,  filled  out  by  the  agent,  was  sent  to  the  com- 
pany ;  and  during  the  term  of  this  policy  the  property 
was  burned.  Hmt^  1st,  that  the  unsigned  applications 
sent  were  not  acts  of  the  insured,  but  were  mere  memo- 
randa for  the  use  of  the  company ;  2d,  that  the  company, 
having  issued  the  policy  with  full  knowledge  of  the  mort- 
gage on  the  part  of  its  agent,  was  estopped  from  setting 
up  want  of  notice  to  avoid  the  policy.  Ames  v.  New  York  . 
Union  Ins.  Co.  14  N.  Y.  258.     1856. 

§  23.  The  application  was  referred  to  "as  forming 
part  of  the  policy,"  and  one  statement  therein  was,  "  no 
encumbrance  but  the  Petrie  mortgage ;"  the  conditions 
on  the  policy  also  were  made  part  thereof,  one  of  which 
required  a  full  disclosure  of  all  encumbrances.  Held^ 
that  the  above  statement  in  application  was  a  warranty 
that  there  Wii>.  no  other  encumbrance  than  the  Petrie 
mortgage ;  and  it  appearing  that  there  was  yet  another 
mortgage,  it  was  a  breach  of  warranty  that  avoided  the  pol- 
icy.   Smith  V.  EiLpire  Ins.  Co.  25  Barb.  N.  Y.  497.    1B57. 

§  24.  The  case  quoted,  Bowditch  Mut.  Fire  Ins.  Co. 
V.  Winslow,  3  Gray,  415,  ante^  §  20,  again  coming  up  for 
review,  and  it  appeai'ing  that  policy  had  been  made  pay- 
able to  mortgagees  with  consent  of  company ;  Held^  again, 
that  the  failure  to  disclose  the  $800  mortgage  was  a  mate- 
rial misrepresentation  that  avoided  the  policy  in  the  hands 
of  the  assignee.    8  Gray,  Mass.  38.     1857. 


254 


ENCUMBRANCE. 


U 


U 


.r 


§  25.  Where  a  mortgagee  interest  was  insured,  and 
defense  was  that  there  were  prior  encumbrances  not  dis- 
closed, and  referee  found  that  the  agent  of  the  insurance 
company  knew  of  the  prior  encumbrances,  that  the  appli- 
cation produced  was  in  the  hand-writing  of  such  agent, 
and  not  signed  by  the  assured,  and  was  entirely  blank  as 
to  the  questions  usually  propounde'd,  and  especially  as  to 
encumbrances ;  and  that  the  objection  was,  therefore,  un- 
tenable ;  Held^  that  there  was  no  such  mistake  in  thia 
respect  as  would  justify  the  setting  aside  of  the  referee's 
award.  Rex  v.  Insurance  Companies,  2  Philadelphia,  Pa. 
357.     1858. 

§  26.  The  application  contained  the  question,  "  Is  the 
property  encumbered  by  mortgage  or  otherwise?"  To 
which  the  .answer  \ras,  "No."  In  fact  there  was  a  mort- 
gage for  $5,000.  The  policy,  in  express  terms,  made  the 
application  a  part  of  it.  Held^  that  the  fact  of  this  mis- 
representation being  admitted,  its  materiality  appeared  as 
matter  of  law,  and  that  the  policy  was  avoided.  Patten 
V.  Merchants  &  Farmers'  Mut.  Fire  Ins.  Co.  38  N.  II.  338. 
1859. 

§  27.  One  condition  of  the  policy  was  as  follows: 
"This  policy  is  made  and  accepted  in  reference  to  the  ap- 
plication for  it,  and  to  the  conditions  herein  annexed, 
which  are  hereby  made  a  part  of  the  contract,  and  are  to 
be  resorted  to  in  order  to  ascertain  and  determine  the 
rights  and  obligations  of  the  parties  hereto,  in  all  cases 
not  herein  otherwise  expressly  provided  for.  And  the  as- 
sured, by  his  acceptance  of  this  policy,  covenants  and 
engages  that  the  said  application  contains  a  just,  full  and 
true  statement  of  all  the  facts  and  circumstances  in  regard 
to  the  condition,  situation,  value  and  risk  of  the  property 
insured,  and  that  if  any  fact  or  circumstance  shall  not 
have  been  fairly  represented,  the  risk  taken  by  this  com- 
pany shall  cease,  and  this  policy  shall  be  void."  Assured, 
by  letter,  applied  to  the  agent  of  the  company  for  insur- 
ance. Thereupon  the  agent  filled  out  an  application, 
which  contained  a  statement  that  there  was  "  no  mort- 
gage ".  on  the  property  to  be  insured,  and  signed  the  name 
of  assured  to  it,  without  the  knowledge  ot  assured.    A 


ENCUMBRANCE. 


255 


policy  was  issued,  referring  to  the  application  as  part  of 
the  policy,  which  was  accepted  by  assured  with  the  appli- 
cation attached  to  the  policy.  Held,  1st,  that  by  the  ac- 
ceptance of  the  policy,  the  assured  covenanted  and 
engagod  that  the  application  contained  a  just,  full  and 
true  statement  in  regard  to  the  condition  of  the  property 
insured,  and  that  he  thereby  ratified  the  acts  of  the  agent 
in  filling  and  signing  the  application ;  2d,  that  the  repre- 
sentation as  to  the  mortgage  was  material,  though  the 
company  was  a  stock  company  and  had  no  lien  on  the 
real  estate ;  3d,  that  the  covenant  as  to  "  condition,  situ- 
ation, value  and  risk "  of  the  property  insured  included 
title  and  encumbrances,  as  showing  the  insurable  interest 
of  the  insured ;  and,  lastly,  that  the  contract  was  entire, 
and  a  misrepresentation  as  to  one  of  the  subjects  insured 
avoided  the  entire  policy.  Richardson  v.  Maine  Ins.  Co. 
46  Me.  394.     1859. 

§  28.  Where  policy  provided  that  "  all  alienations 
and  alterations  in  the  ownership,  situation  or  state  of  the 
property  insured  by  this  company,  in  any  mateiial  partic- 
ular, shall  make  void  any  policy  covering  such  property, 
unless  consented  to  or  approved  by  the  directors,  in  * 
writing,  within  thirty  days;"  and  subsequently  to  the 
making  of  the  policy  the  assured  made  a  mortgage  on  it 
to  another  party,  without  notice  to  or  consent  of  the  com- 
pany ;  Held,  that  the  making  of  the  mortgage  was  a  ma- 
terial alteration  in  the  ownership  of  the  property,  within 
the  meaning  of  the  by-law,  and  avoided  the  policy.  Ed- 
monds V.  Mutual  Safety  Fire  Ins.  Co.  1  Allen,  Mass.  311» 
1861. 

§  29.  An  application  for  insurance,  which  was  re- 
ferred to  in  policy  and  made  a  warranty  on  the  part  of 
the  assured,  stated  the  insurance  to  be  $1,500  on  property 
below  specified,  to  wit :  "  a  mechanic's  lien  on  the  Law- 
rence Block,"  <fec.  The  10th  interrogatory  in  application 
was:  "Is  the  property  insured?"  Answer:  "Lien  in- 
sured for  $16,500  in  other  companies."  The  11th  ques- 
tion was :  "  Is  it  encumbered  by  mortgage  or  otherwise ; 
if  so,  for  how  much  ? "  To  which  answer  ivas  made, 
"  No."  In  fact,  besides  the  lien  insured,  there  were  two 
other  liens  on  the  building  to  the  amount  of  $14,000,  and 


I   i 


256 


ENCUMBRANCE. 


also  ground  rent  to  the  amount  of  $1,500.  Held^  that 
there  was  no  misrepresentation  as  to  the  encumbrance,  as  the 
whole  application,  construed  together,  showed  that  the 
assured,  in  answering  the  question  as  to  encumbrance,  had 
reference  to  his  lien ;  and  that  the  word  "  it "  immediately 
following  assured's  answer  "  Lien  insured  for  $  1 6,500,  * 
referred  to  the  lien  insured,  and  not  to  the  building  subject 
to  the  lien.  Longhurst  v.  Conway  Fire  Ins.  Co.  IT.  S.  D. 
Ct.  Northern  Division  of  Iowa,  October  Term,  1861. 

§  30.  The  facts  in  this  case  were,  that  the  agent  of 
the  assured,  before  the  application  for  insurance,  had  made 
an  arrangement  with  the  attorney  of  tha  mortgagee,  who 
was  foreclosing  a  mortgage  then  existing  on  the  property, 
by  which  he  paid  him  $130,  and  attorney  loaned  him  the 
balance  necessary  to  pay  off  the  mortgage  by  accepting 
his  personal  responsibility  for  such  balance,  and  considered 
the  mortgage  as  paid,  and  discontinued  the  suit  for  fore- 
closure. The  agent  of  assured  then  told  plaintiff  that  the 
mortgage  was  paid,  and  she  made  the  application  for  insur- 
ance, representing  that  the  property  was  not  encumbered. 
Held,  that  this  mortgage,  though  not  discharged  of  record, 
was  no  longer  an  existing  encumbrance  on  the  land,  and 
that  assured  had  not  therefore  made  any  misrepresentation 
as  to  encumbrance.  Hawkes  v.  Dodge  County  Mut.  Ins. 
Co.  11  Wis.  188.     1860. 

§  31.  An  application  for  insurance  on  a  building 
against  fire,  which  by  reference  was  made  part  of  the 
policy,  contained  certain  interrogatories  and  answers,  and 
among  them  the  following :  "  Do  you  own  the  land  \ " 
"  Is  it  unencumbered  by  mortgage  or  otherwise  ? "  "  Yes." 
At  bottom  of  application  was  this  stipulation  •  "  And  the 
said  applicant  hereby  covenants  and  agrees  to  and  with 
the  said  company,  that  the  foregoing  is  a  just,  full,  and 
true  exposition  of  all  the  facts  and  circumstances  in  regard 
to  the  condition,  situation,  value,  and  risk  of  the  property 
to  be  insured,  so  far  as  the  same  are  known  to  the  appli- 
cant and  material  to  the  risk."  Previously  to  the  issuing 
of  the  policy,  the  insured  had  executed  a  mortgage  deed 
to  a  third  party,  *^o  secure  a  large  sum  of  money,  which 
deed  was  then  held  by  such  person,  and,  shortly  thereafter, 
duly  recorded ;  Held,  that  the  unrecorded  mortgage  was 


ENCUMBRANCE. 


25Y 


an  encumbrance  within  the  meaning  and  object  of  the  in- 
•quiry,  and  the  assured  not  having  disclosied  in  his  answer 
the  existence  of  such  mortgage,  the  policy  was  void.  That 
the  covenant  in  the  application  of  a  full  and  true  exposi- 
tion, <fec.,  "  so  far  as  known  to  the  applicant  and  material 
to  the  risk,  must  be  construed  in  connection  with  the  spe- 
cific inquiry,  and  that  the  company,  by  making  a  specific 
inquiry,  showed  that  the  answer  to  it  was  regarded  as 
material  to  the  risk,  and  assured  could  not  now  be  heard 
to  say  it  was  immaterial.  Hutchins  v.  Cleveland  Mut.  Ins. 
Co.  11  Ohio  St.  477.     1860. 

§  32.  In  the  application,  which  was  made  part  of  the 
policy,  was  this  question :  "  Is  it  (property)  encumbered 
by  mortgage  or  otherwise  ?  If  so,  tor  what  sum  ?  "  An- 
swer, "  No.  At  bottom  of  application  was  the  covenant 
that  the  "above  is  a  full,  just,  and  true  exposition  of  all 
the  facts  and  circumstances  in  regard  to  the  condition, 
situation,  value,  and  risk  of  the  property  to  be  insured,  so 
far  as  the  same  are  known  to  the  applicant,  and  a  e  mate- 
rial to  the  risk."  The  conditions  annexed  also  contained 
similar  covenants.  In  fact,  there  were  two  valid  and  un- 
satisfied mortgages  on  the  property  for  $5,000  each.  The 
plaintiff  offered  parol  evidence  to  show  knowledge,  on  part 
of  the  agent  of  the  company,  of  the  existence  of  these 
mortgages,  which  defendants  objected  to,  as  being  evidence 
to  contradict  or  explain  the  contract.  Held^  that  the  evi- 
dence did  not  tend  to  contradict  or  explain  the  contract, 
nor  to  contradict  the  fact  that  the  plaintiff*  had  falsely  an- 
swered the  question,  but  merely  went  to  show,  that  how- 
ever incorrect  the  answer  may  have  been,  yet,  as  the  agent, 
who  wrote  the  answers  in  the  application,  had  full  knowl- 
edge of  the  facts  misrepresented,  the  company  could  not 
have  been  misled  or  injured  by  it,  and  it  was  therefore  - 
properly  admitted.  Held  further^  that  the  company  was 
chargeable  with  the  knowledge  of  all  the  facts  known  to 
its  agent,  and  that  as  the  agent  knew  of  the  encumbrances, 
the  misrepresentation  of  assured  in  regard  to  them,  did 
not,  in  the  absence  of  fraud,  avoid  the  policy.  Patten  v. 
Merchants'  &  Farmers'  Mut.  Fire  Ins.  Cfo.  40  N.  H.  375. 
1860.    (See  same  case,  anU^  §  26.) 

§  33.    In  a  policy  of  insurance,  insuring  both  peal  and 


+ 


258 


ENCUMBBANGE. 


personal  property,  a  condition  that  if,  during  the  life  of 
the  policy,  an  encumbrance  fall  or  be  executed  upon  the 
property  insured,  sufficient  to  reduce  the  real  interest  of  the 
insurer  to  or  below  the  amount  of  the  policy,  without  the 
consent  of  the  insurance  company,  the  policy  shall  be  void, 
applies  to  both  kinds  of  property,  and  means  that  the 
owner's  interest  shall  not  be  reduced  hy  encumbrances  be- 
low the  amount  insured,  without  notice  to  the  company. 
And  in  such  case,  if  encumbrance  fall  upon  the  property, 
e.  g.,  an  attachment,  the  company,  upon  receiving  notice, 
has  the  right  to  rescind  the  policy  on  repayment  of  a  pro- 
portionate part  of  the  premium.  Brown  v.  Commonwealth 
Mut.  Ins.  Co.  41  Penn.  St.  187.    1861. 

(  §  34.    Where  a  policy  provided  that  it  should  become 

/     void  if  an  encumbrance  fell  upon  the  property  without  the 
\     consent  of  the  insurer ;  Meld,  that  after  notice  of  liens 
(     against  the  property  had  been  given  by  the  insured  to  the 
insurance  company,  their  consent  to  stand  as  insurers  would 
be  implied  if  there  was  no  dissent.    Brown  v.  Common- 
wealth Mut.  Ins.  Co.  41  Penn.  St.  187.     1861. 

§  35.  Where  by  its  terras  a  policy  is  to  be  void  "  un- 
less the  true  title  of  the  assured  and  the  encumbrances  on 
the  same  be  expressed  therein,"  the  existence  of  an  encum- 

(brance  is  a  fact  material,  as  a  matter  of  law,  to  be  dis- 
closed ;  and,  if  not  set  forth,  the  policy  will  be  void,  un- 
less it  be  shown  that  the  encumbrance  was  known  to  the 
insurer,  and  not  fraudulently  concealed.  Gahagan  v.  Union 
\Mut.  Ins.  Co.  43  N.  H.  176.    1861. 

§  36.  If  an  application  for  insurance  is  expressly 
made  a  part  of  a  policy,  an  answer  in  the  application 
falsely  denyihg  the  existence  of  encumbrances  on  the 
W  property  to  be  insured,  will  avoid  the  policv.  Murphy  v. 
People's  Equitable  Mut.  Fire  Ins.  Co.  7  Allen,  Mass.  239. 
1863. 

§  37.  An  application  for  insurance  was  expressly 
made  a  part  of  the  policy,  and  the  policy  was  also  made 
subject  to  the  conditions  and  limitations  expressed  in  the 
by-laws  annexed,  and  those  by-laws  provided  that  the 
policy  should  be  void,  if  the  application  should  not  con- 


ENCUMBRANCE. 


259 


tain  a  full,  fair  and  substantially  true  representation  of  all 
the  facts  and  circumstances  respecting  the  property,  so  far 
as  they  were  within  the  knowledge  of  the  assured  and 
material  to  the  risk.  The  premises  were  subject  to  two 
f  mortgages  made  by  the  insured ;  and  in  reply  to  a  ques- 
tion in  the  application,  "Is  the  property  moi*tgagea  or 
otherwise  encumbered,  and  to  what  amount?"  tlie  as- 
sured mentioned  only  oaeof  the  mortgages.  HeMy  that 
the  policy  was  void,  andtHat  the  insured  did  not  then 
recollect  the  other  mortgage  was  immaterial.  Towne  v. 
Fitchburg  Mut.  Fire  Ins.  Co.  7  Allen,  Mass.  51.     1863. 

§  38.  A  policy  similar  to  that  specified  in  §  37,  will 
also  be  rendered  invalid  if,  in  reply  to  a  question  in  the 
application  calling  for  the  amount  of  encumbrances,  the 
answer  was  that  there  were  two  mortgages  for  $2,700  in 
all,  the  first  of  which  was  for  $1,150,  and  the  second  for 
$1,550,  when  in  fact  the  first  was  for  $1,150  as  principal, 
and  for  accrued  interest,  to  the  amount  of  $300  more. 
Jacobs  V.  Eagle  Mut.  Fire  Ins.  Co.  7  Allen,  Mass.  132. 
1863. 


§  39.  Where  an  insurance  was  made  upon  the  liquors 
and  furniture  of  a  public  house,  and  in  answer  to  an  inter- 
rogatory, the  person  whose  property  was  insured  stated 
that  the  liens  upon  her  real  estate  amounted  to  a  certain 
sum,  when  they  really  amounted  to  a  much  larger  sum ; 
and  the  conditions  of  the  policy  stated  that  it  should  be 
void,  if  the  answers  thus  made  were  not  true ;  Held^  that 
such  answer  was  a  warrantv,  and  not  merely  a  representa- 
tion. Pennsylvania  Ins.  Oo.  v.  Gottsman,  48  Penu.  St. 
151.     1864. 

§  40.  A  stipulation  in  an  insurance  policy  requiring 
the  person  whose  property  is  insured  to  give  notice  to  the 
insurance  company  of  an  encumbrance  or  levy  made  upon 
the  property  insured,  is  a  substantive  and  material  part 
of  the  contract,  and  a  failure  to  give  such  notice  forfeits 
the  policy.  Pennsylvania  Ins.  Co.  v.  Gottsman,  48  Penn. 
St.  151.     1864. 

§  41.  A  bond  for  the  conveyance  of  the  premises  in- 
sured, upon  the  payment  of  a  sum  of  money  at  a  specified 


I 


i 


260 


ENCUMBRANCE. 


time,  is  not  an  encumbrance  on  such  premises,  if  the  time 
has  expired,  and  the  money  has  not  been  paid,  even  if  the 
obligor  has  verbally  waived  the  time.  Newhall  v.  Union 
Mut.  Fire  Ins.  Co.  52  Me.  180.     1863. 

§  42.  The  plaintiif  represented  his  title  as  unencum- 
bered. There  was  a  mortgage  on  it ;  but  certain  services 
which  he  was  to  perform  for  the  mortgagee  were  to  be 
credited  on  the  mortgage.  Before  application  for  insur- 
ance, these  services  amounted  to  the  face  of  the  mortgage, 
which  the  mortgagee  was  ready  to  cancel ;  but  it  was  still 
outstanding.  Iletd,  no  reply  to  the  defense  of  misrepre- 
sentation. Muma  V.  Niagara  District  Mut.  Ins.  Co.  22 
U.  C.  Q.  B.  214.     1862. 

§  43.  The  application  for  insurance  in  a  mutual  com- 
pany had  a  condition  that  agents  were  to  be  considered 
the  applicants'  agents,  so  far  as  related  to  making  the  ap- 
plication. The  agent's  having  notice  of  an  encumbrance,  is 
not  the  company's  knowledge,  the  assured  having  signed 
the  application  knowing  it  was  not  therein  mentioned. 

A  notice  having  afterwards  been  given  to  the  company 
of  the  mortgage,  but  with  a  misstatement  as  to  amount, 
making  it  much  smaller  than  it  was,  and  not  communicating 
the  fact  that  the  mortgage  had  been  given  before  issuing 
the  policy,  one  and  a  half  years  previous,  the  company's  as- 
sent to  an  assignment  to  the  mortgagee,  does  not  prevent 
the  policy  being  void.  Johnstone  v.  Niagara  District  Mut. 
Ins.  Co.  13  U.  C.  C.  P.  331.     1863. 

L44.  A  condition  of  avoidance  of  the  policy,  if  the 
'ant  should  subsequently  encumber  his  property,  is 
not  broken  by  an  encumbrance  by  the  party  to  whom  the 
premises  and  policy  were  assigned.  Richardson  v.  Can- 
ada West  Farmers' *M.  &.  S.  Ins.  Co.  16  U.  C.  C.  P.  430. 
1866. 

§  45.  The  application,  which  had  been  signed  in 
blank  by  the  assured  and  filled  up  by  the  agent,  stated 
there  was  no  encumbrance,  although  the  assured  told  the 
agent  of  a  mortgage  on  the  premises.  Held,  as  the  agent 
had  knowledge  of  the  encumbrance,  this  was  verbal  notice 
to  the  company.    Also,  as  the  same  company  had  insured 


ENCUMBRANCE. 


261 


the  mortgagee's  interest,  and  therefore  had  actual  knowl- 
edge of  the  mortgage,  if  there  was  any  breach  of  condition, 
it  was  a  breach  eo  insta/nti  on  the  making  of  the  contract, 
and  to  allow  the  taking  the  premium  without  taking  the 
risk  WO' lid  be  to  encourage  a  fraud.  Kowley  v.  Empire 
Ins.  Co.  3  Keyes,  557.     1867. 

§  46.  The  application  erroneously  stated  there  was 
no  encumbrance ;  the  assured  afterward  notified  the  agent 
of  the  mistake,  and  he  wrote  to  the  company.  Held^  if  the 
information  arrived  before  forwarding  the  policy,  it  was  a 
correction  of  the  application,  making  it  true ;  if  not  until 
after,  qticere,  whether  the  defendant  should  not  have  re- 
turned the  premium  and  demanded  a  surrender  of  the 
policy  or  be  estopped  to  set  up  the  eiTor  ?  Anson  v.  Win- 
nesheik  Ins.  Co.  23  Iowa,  84.     1867. 

§  47.  Clause  that  if  an  "encumbrance  shall  be  exe- 
cuted on  the  property,  the  policy  is  void,  until  consent  is 
obtained."  A  mortgage,  executed  a  few  days  before  the 
fire,  but  not  stamped  or  fully  delivered ;  Jield,  not  to  be 
an  encumbrance  in  any  form,  and  not  to  avoid  the  policy. 
Olmstead  v.  Iowa  Mut.  Ins.  Co.  24  Iowa,  503.     1868. 

§  48.  Plaintiff  and  his  wife  held  the  premises  (as  ten- 
ants in  common)  under  deed  from  R.  S.,  to  whom  a  bond 
was  given  back  as  part  of  the  consideration,  to  support  R. 
S.  and  wife  during  their  lives.  Held,  plaintiff  could  de- 
scribe the  property  as  unencumbered ;  that  there  was  no 
lien  for  purchase  money  nor  encumbrance.  Mason  v.  Ag- 
. 'cultural  Mut.  Ass.  of  Can.  18  U.  C.  C.  P.  19.  1868. 
Affirming,  s.  c.  in  16  lb.  403.     1866. 

8  49.  The  application  stated  that  "  the  encumbrance 
on  this  property  is  000."  The  policy  had  a  clause  of  for- 
feiture  for  misrepresentation.  The  plaintiff  having  dis- 
closed the  fact  of  a  mortf^aoje  to  the  agent  who  wrote  out 
the  application  and  signed  the  plaintiff's  name,  the  latter's 
omission  to  mention  it  does  not  avoid  the  policy. 

When  asked  if  the  premises  are  encumbered,  the  appli- 
cant need  only  state  specific  liens,  such  as  mortgage,  contract 
to  sell,  charge  by  will,  sale  by  sheriff,  but  is  not  called  upon 
to  speak  of  judgments,  which  are  a  general  lien,  and  no  spe- 


r 


262 


ENCUMBRANCE. 


/ 


eific  lien  upon  any  particular  portion  of  the  property. 
Owen  V.  Farmers'  Joint-Stock  Ins.  Co.  57  Barb.  518.    18C9. 

§  50.  Tlie  application,  made  part  of  tbe  policy,  falsely 
stated  there  "was  no  encumbrance,  and  then  covenanted 
that  "  the  foregoing  is  a  just,  full  and  true  exposition  of 
all  the  facts,  *  *  *  so  far  as  known  to  the  applicant 
and  material  to  the  risk."  Ildd^  this  covenant  is  a  war- 
ranty, and  that  whether  the  existence  of  a  small  mortgage 
is  material  to  the  risk,  is  not  an  open  question,  as  the  in- 
quiry itself  makes  it  material  as  matter  of  contract.  Shoe- 
maker V.  Glens  Falls  Ins.  Co.  60  Barb.  84.     18C9. 

§  51.  A  condition  that  in  case  of  loss  the  assured 
should  state  on  oath  whether  any  and  what  other  insur- 
ance or  encumbrance  has  been  made,  refers  to  the  period 
since  the  insurance ;  and  a  mortgage  made  one  month  be- 
fore the  date  of  the  policy  need  not  be  mentioned,  but  the 
notice  saying  nothing  about  encumbrances  at  all;  Held^ 
the  plaintiff  must  be  non-suited,  as  it  was  required  of  him 
to  state  that  the  premises  were  or  were  not  encumbered, 
and  his  silence  was  a  breach  of  a  condition  precedent. 
Markle  v.  Niagara  District  Mut.  Fire  Ins.  Co.  28  U.  C.  Q. 
B.  525.     1869. 

§  52.  By  the  charter  of  a  mutual  company,  expressly 
made  obligatory  on  all  its  members,  it  was  agreed  that 
policies  issued  on  encumbered  property  should  be  void, 
without  written  notice  thereof  Held^  verbal  notice  can- 
not be  substituted.  Per  Welch,  J.  That  the  power  of 
an  agf  nt  of  a  mutual  company,  whose  charter  requires  that 
policies  shall  only  be  issued  on  the  written  application  of 
the  party  to  be  insured,  being  limited  to  receiving  and  for- 
warding applications,  acts  as  the  plaintiff's  agent  in  filling 
up  the  application,  and  notice  to  him  of  an  encumbrance 
which  he  fails  to  set  out,  is  not  notice  to  the  company. 
Smith  V.  Farmers'  Mut.  Ins.  Co.  19  Ohio  St.  287.     1869. 

§  53.  An  indorsement  on  the  policies  that  the  loss 
would  be  paid  to  those  holding  encumbrances,  is  notice 
of  the  encumbrances ;  and  the  the  neglect  of  the  agent  to 
inform  the  company  is  the  misfortune  of  the  latter.  Ins. 
Co.  of  N.  Amer.  v.  McDowell,  50  111.  120.     1869. 


/■ 


ENCUMBBANCE. 


263 


§  54.  Policy  on  chattel  property,  the  contents  of  cer- 
tain barns  and  shed.  A  question  in  the  application, 
among  others  not  applicable  to  chattel  property,  as  to  en- 
cumbrances, answered  "  None."  It  appeared  that  the  real 
estate  was  mortgaged;  that  the  dotendant's  agent  filled  in 
the  answer  at  the  plaintiff's  dictation ;  the  plaintiff  when 
about  to  explain  that  the  land  was  iiiortgaged,  was  stopped 
by  the  agent,  who  said  that  it  was  of  no  importance,  as 
only  the  contents  of  the  buildings  were  to  be  insured. 
Held,  the  question  must  be  considered  as  relating  to  the 
goods  only..  Ashford  v.  Victoria  Mut.  Ass.  Co.  20  U.  C. 
C.  P.  434.     1870. 

§  55.  Application  made  part  of  the  policy,  and  a 
warranty  had,  the  question:  "Encumbrance;  state  the 
amount.  Is  there  any  insurance  by  the  mortgagees  ? 
state  the  amount."  The  applicant  explained  the  state 
of  the  encumbrances  to  the  agent,  who,  after  discussion, 
told  him  to  answer,  "  No,"  as  there  was  no  insurance  bj'- 
the  mortgagees.  "  No  "  was  only  a  proper  reply  to  the 
last  part  of  the  question.  Held,  as  the  applicant  answered 
the  question  as  he  understood  it,  the  insurers  are  responsi- 
ble for  the  ambiguity.  If  untrue,  the  unskilfulness,  care- 
lessness, or  fraud  of  the  agent,  in  speaking  of  matters  not 
fenerally  understood,  to  an  applicant  who  supposes  that 
e  has  given  the  agent  al|  the  information  desired,  is  that 
of  the  company,  ^tna  Live  Stock  Fire  &  Tornado  Ins.  Co. 
V.  Olmstead,  21  Mich.  246.     1870. 

§  56.  The  application  had  no  question  as  to  encum- 
brance or  title ;  the  blank  used  therein  being,  "  The  en- 
cumbrance upon  the  property  is  % ,"  which  was  not 

filled  up.  Held,  not  having  asked  the  question,  and  hav- 
ing issued  the  policy  on  such  blank,  the  company  is  liable. 

That  when  the  plaintiff  holds  the  equitable  title  undei* 
a  contract,  it  is  not  a  misrepresentation  to  call  himself 
owner.  Nor  is  a  vendor's  lien,  if  any  exist,  such  an  en- 
cumbrance as  is  contemplated  by  the  insurer.  Dohn  v. 
Farmers'  Joint  Stock  Ins.  Co.  5  Lansing,  275.    1871. 

See  Agent,  §  70.  Alienation,  5,  64.  Application,  43.  Concealment,  13, 
29.  Dependency  of  Policy  and  Premium  Note,  14.  Entirety  and  Divisibil- 
ity of  Policy,  3,9.  Estoppel,  8.  Insurable  Interest,  57.  Lien,  8.  Title  15, 
88, 41,  44,  73.    Written  Portion  of  Policy,  8. 


I. 


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ENDORSEMENTS. 

§  1.  The  policy  contaiL.<?d  a  provision  requiring  no- 
tice of  other  insurance  to  be  given  to  the  company  and 
indorsed  on  the  policy,  or  otherwise  ackiowledged  in 
writing,  and,  in  default  thereof,  declaring  the  policy  void. 
In  an  action  at  law  (16  Peters,  495,  U.S7),  the  policy  was 
declared  void  for  non-compliance  with  this  provision.  A 
bill  in  equity  was  now  brought,  charging  that  notice  was 
given,  and  asking  that  the  company  be  compelled  to  make 
the  endorsement,  and  for  other  relief.  The  answer  of  the 
company  was  sworn  to  by  the  president,  and  denied  the 
fact  of  notice.  Held^  that  something  more  than  the  testi- 
mony of  one  witness  was  required  to  overcome  the  answer 
of  the  president,  though  he  was  not  in  the  office  at  the 
time  the  notice  was  alleged  to  have  been  given,  and  that 
the  proof  of  notice  adduced  was  insufficient.  On  the 
question  of  the  right  to  equitable  relief  under  such  cir- 
cumstances, the  court  say,  "Supposing  the  bill  to  l»e 
broad  enough  in  its  allegations,  and  the  sending  of  notice 
of  the  second  insurance  proved,  and  the  duty  to  acknowl- 
edge it,  if  received,  to  be  clear,  we  might  in  most  cases 
like  this,  enforce  a  discovery  of  the  receipt  of  it,  if  coming 
to  hand ;  and  might  enjoin  the  insurers  against  using,  by 
way  of  defense,  a  circumstance  caused  by  their  own  mis- 
conduct.  Baker  v.  Biddle,  1  Baldwin  C.  C.  405.  But 
whether  we  could  go  further,  and  enforce  a  recovery  for 
the  loss  on  the  equity  side  of  this  court,  need  not  now  be 
decided."  Carpenter  v.  Providence  Washington  Ins.  Co. 
4  How.  U.  S.  185.     1846. 

§  2.  Under  ,a  clause  in  a  policy  of  insurance  which 
provided  that  it  should  beccac  void  on  assignment,  unless 
notice  was  given  at  the  office  of  the  company,  and  the 
same  approved  and  indorsed  on  the  policy  by  the  secre- 
tary or  othtr  authorized  officer ;  Ileld^  an  approval  of  and 
consent  to  an  assignment,  written  and  signed  by  the  pres- 
ident on  a  separate  piece  of  paper,  and  attached  to  the 
policy  by  a  wafer,  was  sufficient.  Pennsylvania  Ins.  Co.. 
Vc  Bowman,  44  Penn.  St.  89.     1862. 


ENDOBSEMENTS. 


265 


§  3.  Where  property  was  insured  by  the  original 
policy  to  the  amount  of  $200,  and  after  the  policy  was 
forfeited  by  the  introduction  of  new  elements  of  risk,  the 
company,  with  full  knowledge  of  the  facts,  by  an  endorse- 
ment on  the  policy  added  $100  to  the  risk  on  the  same 
property,  and  in  the  endorsement  stated  the  whole  risk  as 
thus  increased  to  be  $300 ;  Held^  that  the  forfeiture  was 
thereby  waived  by  the  company.  Eathbone  v.  City  Fire 
Ins.  Co.  31  Conn.  194.     1862. 

§  4.  Where,  after  an  insurance  was  effected  by  "  S. 
and  others,"  the  property  was  sold  to  W.,  who  at  the 
same  time  mortgaged  it  back  to  S.,  to  secure  debts  due  to 
him,  and  to  C.  &  M.,  of  which  notice  was  given  to  the 
company,  who  indorsed  upon  the  policy  a  consent  that  it 
should  remain  in  force  and  not  be  avoided  by  the  sale, 
which  consent  was  signed  by  the  president  and  secretary ; 
Heldy  that  the  policy  was  not  a\  .ided  by  the  sale,  but 
that  a  suit  might  be  maintained  by  S.  for  the  benefit  of 
himself,  and  C.  <fe  M.,  and  also  that  the  president  and  sec- 
retary, who  had  given  such  consent,  at  the  company's  place 
of  business,  were  to  be  presumed  to  have  authority  to  do 
the  act,  until  the  contrary  was  shown.  Sanders  v.  Hills- 
borough Ins.  Co.  44  N.  H.  238.     1862. 

§  5.  Where  '^  notice  of  loss  contains  a  statement  that 
the  building  w;  >  lighted  with  burning  fluid,  and  the 
memorandum  of  special  hazards  provides  that  the  policy 
shall  be  void  if  burning  fluid  is  used  without  permission 
in  writing  indorsed  on  the  policy,  no  action  can  be  main- 
tained in  the  absence  of  such  '.onnission.  Campbell  v. 
Charter  Oak  Fire  &  Marine  Ins.  Co.  10  Allen,  Mass.  213. 
1865. 

§  6.  An  endorsement  written  by  the  insurers  across 
the  face  of  a.  policy  of  a  privilege  of  additional  insurance 
is  a  waiver  of  notice  of  such  additional  'nsui'fince,  Bene- 
dict V.  Ocean  Ins.  Co.  31  N.  Y.  389.     1865. 

§  7.  The  husband  of  the  owner,  at  her  request,  applies 
for  insurance  in  her  name,  the  company  places  half  the 
insurance  in  the  defendant,  without  saying  that  the  policy 
should  be  in  the  wife's  name,  and  it  was  accordingly 


266 


ENTORCEJIENT   OF  CONTRACT  FOR   POLICY. 


issued  in  the  husband's  name.  Although,  it  seetns  no 
recovery  could  be  had  on  this  policy,  yet  the  husband 
afterwards  explaining  the  mistake  to  the  defendant's  sec- 
retary, with  a  request  to  have  the  loss  payable  to  E.  and 
the  clerk's  making  the  loss  so  payable  by  endorsement, 
although  without  correcting  the  mistake  as  to  the  assured, 
or  saying  anything  thereupon,  makes  a  valid  contract  with 
the  wife.  Solmes  v.  Rutgers  Fire  Ins.  Co.  3  Keyes,  416. 
1867. 

See  Alienation,  §  87.  Application,  23,  63.  Assignment,  33,  56.  Con- 
struction of  Contract,  36.  Consummation  of  Contract,  11.  Encumbrance, 
63.    Other  Insurance,  113,  135.     What  Property  is  Covered  by  Policy,  36. 


ENFORCEMENT  OF  CONTRACT  FOR 

POLICY. 

§  1.  An  agreement  to  insure  may  be  specifically  en- 
forced, and,  if  a  loss  happen,  payment  may  be  compelled 
in  a  court  of  equity.  Carpenter  v.  Mutual  Safety  Ins. 
Co.  4  Sandf  Ch.  N.  Y.  408.     1846. 

§  2.  A  court  of  equity  may  compel  the  delivery  of 
the  policy  agreed  and  contracted  for,  either  before  or  after 
the  happening  of  the  loss ;  and,  beintj  properly  in  that 
court,  after  a  loss,  may  proceed  and  give  such  final  relief 
as  the  circumstances  of  the  case  demand.  Tayloe  v.  Mer- 
chants' Ins.  Co.  9  How.  U.  S.  390.     1850. 

§  3.  A  policy  was  executed,  and  delivered  to  an 
agent  of  insurei'S,  and  then  sent  back  for  correction  to 
general  agent,  who  tore  oft'  the  names  of  president  and 
secretary  and  seal  of  the  company,  and  afterwards,  when 
requested  to  deliyer  the  i)olicy,  refused  to  do  so.  Held^ 
that  this  gave  the  insured  a  right  to  come  into  a  court  of 
equity  for  relief 
Barb.  N.  Y.  595. 


Chase  v.  Washington  Mut.  Ins.  Co.  12 


1852. 
See  Parol  Contract,  §  3.    Pleading  and  Practice,  53. 


v. 


• 


ENTIRETY  AND  DIVISIBILITY  OF  POLICY. 


§  1.  Policy  covered  insurance  for  diflferent  sums  on 
several  houses,  with  a  clause  that,  if  any  building  should 
contain  any  furnace  or  stove,  used,  <fec.,  the  policy  should 
be  void  in  respect  to  such  building.  To  a  declaration  set- 
ting out  said  several  insurances,  a  plea  was  put  in,  as  a 
defense  to  the  whole  count,  that  certain  of  the  buildings 
did  contain  furnaces  and  stoves.  Held^  bad,  for  the  policy 
might  be  void  as  to  those  buildings,  and  still  the  plaintiff 
be  entitled  to  recover  on  account  of  the  loss  of  other 
buildings  insured  in  one  policy.  Held,  furt1i€i\  that  the 
plea  that  furnaces  and  stoves  were  contained,  &c.,  was 
double.    Daniel  v.  Robinson,  Batty,  650.     1826. 

§  2.  A  policy  was  taken  on  shop,  tools,  fixtures  and 
stock  in  trade — a  separate  amount  on  each ;  and  one  de- 
posit note  was  given,  and  the  sum  of  $6  62  was  paid  for 
the  premium  on  the  whole  property.  The  assured,  in  his 
application,  stated  that  there  was  no  encumbrance,  when 
in  fact  there  was  a  mortgage  on  the  land  on  which  the 
shop  was  built,  and  another  mortgage  on  a  portion  of  the 
tools.  Held',  that  the  entire  policy  was  void.  Friesmuth 
V.  Agawam  Mut.  Ins.  Co.  10  Cusli.  Mass.  587.     1852. 

§  3.  Under  a  charter  j^roviding  that  "true  title  of 
assured  and  encumbrances  <on  buildings  insured  should  be 
expressed,  or  pohcy  would  be  void;"  Held,  that  a  failure 
to  disclose  a  deed  of  trust  on  house  and  lot,  though  avoid- 
ing such  policy  as  to  house  insured,  would  not  avoid  it  as 
to  furniture  insured  in  the  same  policy,  but  separately  ap- 
praised. Loehner  v.  Hv>me  Mut.  Ins.  Co.  17  Mo.  247. 
1852.    Affirmed,  19  Mo.  028.     1854. 

§  4.  A  policy  was  for  "$1,000,  say  $700  on  books 
and  $300  on  music,"  «fec.,  with  thd  clause  that,  if  assured 
should  thereafter  niake  any  other  insurance  on  the  insured 
premises  the  policy  should  be  void,  unless  notice  thereof 
should  be  given.  Held,  that  the  proper  construction  of 
the  policy  was,  that  if  any  part  of  the  goods  embraced  in 
the  policy  were  afterwards  insured  m  another  office, 
without  notice,  the  whole  policy  became  void.     Mason,  J., 


V 


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f 


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M 


* 


268 


ENTIRETy  AND  DIVI8IBIIJTT  OF  POLICY. 


dissenting,  holding  contract  only  void  a8  to  that  part 
of  goods  which  had  been  insured  in  another  company. 
Associated  Firemen's  Ins.  Co.  v.  Assum,  5  Md.  165» 
1853. 

§  5.  A  policy  was  taken  in  a  stock  company  for 
$1,150,  to  wit:  $1,000  on  a  factory  and  $150  on  a  black- 
smith shop,  and  contained  a  stipulation  that  if  the  prem- 
ises should  be  put  to  a  use  denominated  hazardous,  Ac, 
then,  so  long  as  the  premises  should  be  so  used,  the  policy 
should  be  void.  The  factory  was  put  to  a  use  coming 
within  this  stipulation.  Hela,  that  the  contract  was  en- 
tire, and  that  the  policy  was  avoided  as  to  both  factory 
and  shop.  Lee  v.  Howard  Fire  Ins.  Co.  3  Gray,  Mass. 
583.     1854. 

§  6.  Where  policy  insured  $1,600  on  dwelling-house 
and  $800  on  furniture  therein,  and  the  application  stated 
that  there  was  "  no  encumbrance  except  the  Petrie  mort- 
gage," when  in  fact  there  was  another  mortgage  on  the 
real  estate ;  Held,  that  the  policy  was  void,  not  only  as  to 
the  house,  but  also  as  to  the  furniture.  Smith  v.  Empire 
Ins.  Co.  25  Barb.  N.  Y.  497.     1857. 

§7.  Where  a  policy,  in  consideration  of  one  premium, 
insured  separate  sums  on  stock  and  on  fixtures;  and  a 
subsequent  insurance  without  notice,  was  effected  on  the 
stock,  in  violation  of  the  stipulations  of  the  policy  on 
that  subject ;  Held,  that  the  policy  was  avoided  as  to  both 
stock  and  fixtures.  Kimball  v.  Howard  Fire  Ins.  Co.  8 
Gray,  Mass.  33.     1857. 

§  8.  Where  a  policy  was  taken  for  separate  sums  on 
store  and  on  stock,  and  but  one  premium  note  was  given ; 
and  where  the  representation  of  assured  that  he  was  owner 
of  the  store  turned  out  to  be  false ;  Held,  that  the  con- 
tract was  entire,  and  was  avoided  as  to  both  store  and 
stock.  Lovejoy  v.  Augusta  Mut.  Fire  Ins.  Co.  45  Me. 
472.     1858. 

§  9.  Where  a  store  and  the  stock  of  goods  in  it  were 
covered  by  the  same  policy,  and  the  whole  property  was 
represented  to  be  unencumbered,  when  in  fact  the  store 


ENTIEETT  AND  DIVISIBILITY  OP  POLICY. 


269 


was  under  a  mortgage ;  Held,  that  the  policy  was  void  as 
to  the  goods  as  well  as  the  store.  Gould  v.  York  County 
Mut.  Fire  Ins.  Co.  47  Me.  403.    1859. 

§  10.  A  firm  obtained  insurance  upon  a  storehouse 
and  the  stock  of  goods  therein,  for  a  separate  sum.  The 
interest  of  the  insured  in  the  house  was  incorrectly  de- 
scribed in  the  policy  as  belonging  to  the  firm,  whereas  it 
was  the  property  of  one  of  its  members.  In  a  suit 
brought  to  recover  for  the  loss  of  the  goods ;  Held,  in  the 
absence  of  proof  that  the  plaintiffs  procured  the  insurance 
upon  the  house  for  a  fraudulent  purpose,  or  that  their 
supposed  interest  in  the  house  induced  the  defendant  to 
insure  the  goods,  that  the  insurance  on  the  goods  was  not 
vitiated  by  such  mistake.  Phoenix  Ins.  Co.  v.  Lawrence, 
4  Mete.  Ky.  9.     1862. 

§  11.  Where  a  policy  covering  a  house  and  furniture 
therein,  is  void  as  to  the  building,  the  plaintiff  cannot  re- 
cover thereon  for  loss  of  furniture.  The  contract  being 
indivisible,  is  wholly  void  if  void  in  part.  Barnes  v.  Union 
Mut.  Fire  Ins.  Co.  51  Me.  110.     1863. 

§  12.  Policy  on  a  building  and  on  stock  in  distinct 
amounts ;  tbere  was  a  breach  of  representation  as  to  the 
situation  of  the  building  avoiding  the  insurance  upon 
it;  Held,  not  to  affect  the  insurance  on  the  personal 
property.  Burrill  v.  Chenango  Ins.  Co.  1  Edm.  Sel.  Cas. 
N.  Y.  233.     1846. 

§  13.    Semhle,  that  an  insurance  on  house,  furniture 
and  clothing  in  separate  sums,  is  divisible,  and  breach  of   i  . 
warranty  as  to  one  does  not  affect  the  contract  as  to  the  A 
others.    Rowley  v.  Empire  Ins.  Co.  3  Keyes,  557.    1867. 

§  14.  Policy  applied  for  $2,000  at  1^  per  cent,  pre- 
mium, $30,  viz.,  $500  on  barn,  $1,000  on  furniture  in 
hotel,  $500  on  liquors  and  fixtures  in  hotel ;  Held,  the" 
consideration  being  single  and  entire  the  contract  is  entire, 
therefore  an  untrue  answer  as  to  encumbrances  avoids 
the  policy  as  to  the  personalty  as  well  as  the  realty ;  such 
is  the  contract,  whether  agreeable  to  abstract  justice  or 
not.    Gottsman  v.  Penn.  Ins.  Co.  56  Pa.  St.  210.     1867. 


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270 


ENTIRETY  AND  DIViSIBILITT  OF  POLICY. 


V 


§  15.  Policy  on  stable,  live  stock  and  other  personal 
property,  the  realty  and  personalty  being  separately  val- 
ued,— there  was  nothing  to  show  that  the  representation,  as 
to  encumbrances  on  the  realty,  formed  any  inducement  in 
insuring  the  personalty ;  Hdd^  when  a  separation  can  be 
made  between  the  good  and  bad,  the  good  is  not  vitiated 
(unless  the  whole  contract  is  made  void  by  a  statute  or 
by  an  all-pervading  vice,  such  as  fraud,  or  an  act  con- 
demned by  public  policy  or  common  law),  and  the  insur- 
ance on  personalty  is  not  void  in  this  case  (the  case  does 
not  show  whether  the  consideration  is  entire  or  not). 
Koontz  V.  Hannibal  Sav.  <fe  Ins.  Co.  42  Mo.  126.     1868. 

§  16.  A  policy  on  house  and  furniture  in  separate 
sums,  contained  a  clause  that  if  the  assured  has  a  title  in 
fee  simple  the  policy  is  valid,  not  otherwise.  The  con- 
dition being  broken  as  to  the  real  estate ;  Held^  the  policy 
is  wholly  void.  Russ  v.  Mut.  F.  Ins.  Co.  of  Clinton,  29  U. 
C.  Q.  B.  73.     1869. 

§  17.  Policy  covers  a  building,  also  a  boiler,  <fec.,  in 
it.  Clause  of  forfeiture  in  case  of  any  sale  or  change 
of  title  in  the  property  insured.  As  the  items  were  in- 
sured in  separate  amounts  ;  Held^  the  sale  of  one  class  did 
not  aflfect  any  other,  and  a  sale  of  the  boiler  did  not  affect 
the  insurance  on  any  other  article.  And  ;per  Walker,  J., 
that  the  clause  only  applied  to  a  sale  of  the  real  estate. 
Commercial  Ins.  Co.  v.  Spankneble,  52  111.  53.     1869. 

§  18.  A  policy  upon  stock  of  liquors,  $2,000,  and 
fixtures,  $500,  a  condition  in  which  against  other  insur- 
ance is  broken  by  obtaining  a  second  policy  upon  the  liq- 
uors is  void  altogether,  and  no  recovery  can  be  had  for 
the  fixtures,  \yhitwell  v.  Putnam  Fire  Ins.  Co.  6  Lan- 
sing, 166.     1872. 

See  Alienati©n,  §  18,  30,  35,  48, 49.  Alteration,  6.  Construction,  83.  Dis- 
tance of  Other  Buildings,  6.  Encumbrance,  13, 27.  Limitation  Clause,  10.  Other 
Insurance,  43,  130,  131.  Pleading  and  Practice,  90.  Title,  53.  Two-thirds 
and  Three-fourths  Clause,  18.   Use  and  Occupation,  41. 


ESTOPPEL. 

§  1.  Insurers  are  estopped  from  denying  payment  of 
premium,  where  there  is  an  acknowledgment  in  the  policy, 
unless  they  can  show  that  the  acknowledgment  was  made 
in  error,  by  fraud  or  duress.  Michael  v.  Mutual  Ins.  Co. 
of  Nashville,  10  La.  An.  737.    1855. 

§  2.  In  an  action  for  possession,  brought  by  an  insur- 
ance company,  to  whom  the  mortgagee,  on  payment  of  his 
loss,  had  assigned  the  mortgage ;  Held,  that  the  grantor 
of  the  mortgage  was  estopped  from  denying  his  own  title. 
Concord  Mut.  Fire  Ins.  Co.  v.  Woodbury,  45  Me.  447. 
1858. 

§  3.  Where  the  application  is  refen'ed  to  as  constitut- 
ing part  of  the  policy,  and  as  being  a  warranty  on  the 
part  of  the  assured,  the  latter  after  receiving  the  policy 
cannot  set  up  that  the  application  is  not  his  act,  though 
the  insurance  be  procured  through  an  agent  and  the  ap- 
plication be  unsigned.  And  in  such  a  case,  where  the 
application  states  that  there  are  no  encumbrances,  and  in 
fact  there  are  are  two  mortgages,  the  policy  is  void,  al- 
though at  bottom  of  the  application  was  the  stipulation 
that  the  answers  were  a  full,  just,  and  true  exposition  of 
all  the  facts  and  circumstances  as  to  the  risk,  so  far 
as  known  to  the  applicant  and  "material  to  the  risk." 
Draper  v.  Charter  Oak  Fii'e  Ins.  Co.  2  Allen,  Mass.  569. 
1861. 

§  4.  Where  the  directors  of  a  mutual  fire  insurance 
company  are  empowered  by  charter  "to  determine  the 
sum  to  be  insured  upon  any  building,  provided  it  do  not 
exceed  three-fourths  of  the  value  thereof,"  but  are,  by  the 
general  powers  invested  in  them,  to  determine  the  value 
of  the  building,  the  company,  when  sued  for  a  loss  under 
a  policy,  is  estopped  from  objecting  that  the  sum  insured 
by  the  directors  exceeded  the  prescribed  limit  of  value, 
there  having  been  no  fraud  or  misrepresentation  as  ta 
value  on  the  part  of  the  insured.  Hoxsie  v.  Providence 
Mut.  Fire  Ins.  Co.  6  R.  I.  517.     1860. 

§  5.     An  insurance  company  is  not  chargeable  with 


-I'li::. 


272 


ESTOPPEL. 


till 
Ij 

I 


notice  of  encumbrances  on  property  on  which  it  issues  a 
policy,  because  such  encumbrances  are  matters  of  public 
record,  so  as  to  be  estopped  from  setting  up  such  encum- 
brances in  avoidance  of  the  policy.  Mutual  Ins.  Co.  v. 
Deale,  18  Md.  26.     1862. 

§  6.  Where  an  insurance  company,  after  notice  of  a 
fire,  by  letter,  from  the  insured,  five  or  six  days  after  it 
had  occurred,  sent  an  agent  to  investigate  the  loss,  <fec., 
and  such  agent,  by  authority  of  the  company,  oifered  to 
compromise  the  loss;  Held^  that  the  company  had  by 
their  acts  waived  the  objection ;  and  were  estopped  from 
setting  up  the  defense  that  notice  of  the  loss  was  not 
sent  "  forthwith,"  as  required  by  the  policy.  Lycoming 
Ins.  Co.  V.  Schreffler,  42  Penn.  St.  188.     1,862. 

§7.  A  policy  was  granted  on  a  survey  by  the  compa- 
ny's agent,  without  any  written  application,  on  property- 
situate  in  a  building  the  east  and  west  walls  of  which 
were  stated  in  the  policy  to  be  entire,  and  by  the  terms  of 
the  policy  it  was  to  be  void  if  the  building  should  be  used 
for  carrymg  on  or  exercising  therein  any  trade  or  business 
denominated  extra  hazardous,  without  the  agreement  of 
the  company  thereto  endorsed  on  the  policy;  and  such 
policy  was  once  renewed,  a  new  survey  being  made.  In 
an  action  on  the  policy,  the  defense  was,  that  the  west 
wall  of  the  building  was  not  entire,  but  that  there  were 
two  doors  through  the  same ;  and  that  the  insured  carried 
on  in  the  building,  at  the  time  the  loss  occurred,  an  extra 
hazardous  business,  viz^  cabinet  making  and  upholstery 
manufacturing,  without  any  agreement  therefor  endorsed 
on  the  policy.  Held,,  that  parol  evidence  might  be  given 
to  show  that  at  the  time  the  risk  was  taken,  and  when  the 
policy  was  renewed  and  surveys  made,  the  agents  of  the 
company  knew  of  the  existence  of  the  doors  in  the  west 
wall,  and  that  they  knew  that  cabinet  making  and  uphol- 
stery manufacturing  was  then  being  carried  on  in  the 
building.  And  it  appearing  that  there  was  no  fraud  or 
misrepresentation  committed  by  the  insured,  and  that 
everything  relating  to  the  risk  was  done  in  the  belief  that, 
after  the  agents  had  visited  and  examined  the  premises, 
the  policy  would  be  filled  up  so  as  to  make  it  valid  be- 


ESTOPPEL. 


273 


tween  the  company  and  the  insured,  and  the  building  con- 
tinuing in  the  same  condition,  and  to  be  used  for  the  same 
purposes  as  when  the  risk  was  taken ;  the  defense  set  up 
could  not  prevail,  and  the  company  was  estopped  from 
taking  advantage  of  the  acts  of  its  agents  done  within  the 
scope  of  their  authority.  Beal  v.  Park  Fire  Ins.  Co.  16 
Wis.  241.     1862. 

§  8.  A  vote  by  directors  of  a  mutual  insurance  com- 
pany, authorizing  one  of  their  number  and  their  treasurer 
to  settle  a  loss,  and  partial  payments  actually  made  by 
the  treasurer  upon  trustee  processes,  in  which  the  company 
were  summoned  as  trustees  of  the  assured,  and  statements 
by  different  officers  of  the  company  to  the  assured  that 
his  claim  ought  to  be  paid,  will  not  estop  the  company 
from  defending  an  action  upon  the  policy  on  the  ground 
of  misrepresentations  in  the  application  for  insurance,  if  it 
does  not  appear  that  the  assured  has  changed  his  position 
in  reference  to  his  claim,  in  consequence  of  these  acts  and 
declarations.  Murphy  v.  Pieople's  Equitable  Mut.  Fire 
Ins.  Co.  7  Allen,  Mass.  239.     1863. 

§  9.  Where  a  policy  provided  that  the  value  of  the 
property  shall  be  deemed  what  it  would  cost  at  the  time 
of  the  fire  to  replace  it ;  and  also  required  the  preliminary 
proofs  to  state  the  actual  cost  of  the  articles ;  Held^  that 
•the  insured  were  not  b^red  by  their  statement  in  such 
proofs  of  the  actual  cost,  from  claiming  that  the  value,  at 
the  time  of  the  fire,  was  a  greater  sum.  Hoffman  v. 
^tna  Fire  Ins.  Co.  1  Robert.  N.  Y.  501.  1836.  s.  o. 
19  Abb.  Pr.  325.     Affirmed  32  N.  Y.  405. 

§  10.  A  statement  in  the  instructions  issued  by  the 
directors  of  a  mutual  insurance  company  to  agents,  that 
distilleries  are  not  insurable,  does  not  preclude  the  com- 
pany trom  making  a  valid  contract  of  insurance  upon  a 
distillery.  Citizens'  Mut.  Fire  Ins.  Co.  v.  Sortwell,  8  Allen, 
Mass.  217.     1864. 

§  11.  Insurance  on  plaintiff's  house,  which  he  had 
bought  with  the  land  as  part  of  lot  A,  but  which  was 
afterwards  found  to  be  really  upon  lot  B,  another's  land, 
in  consequence  of  an  unskilful  survey ;  defense  of  no  in- 

18 


't 


274 


ESTOPPEL. 


ifi 


surable  interest,  for  want  of  title  to  the  land.  Qucerey 
whether,  when  the  owner  of  the  house  without  fraud 
eflfects  insurance,  the  company  can  set  up  the  legal  title  of 
a  stranger  to  the  land  as  a  defense — that  it  is  not  a  credit- 
able nor  meritorious  defense.  Stevenson  v.  London  & 
Lancashire  F.  Ins.  Co.  26  U.  0.  Q.  B.  148.     1866. 

§  12.  An  alteration  in  the  policy  was  made  by  a  clerk, 
(whose  authority  to  do  so  is  now  denied,)  before  the  pre- 
mium was  paid,  and  a  corresponding  correction  in  the  record 
book  of  the  company.  Jield,  such  entry  in  the  record 
book  is  constructive  notice  to  the  company,  and  as  binding 
upon  them  as  actual  notice.  Washington  Ins.  Co.  v.  Davi- 
son et  al.  30  Md.  91.     1868. 

§  1 3.  A  waiver  never  occurs  unless  intended,  or  where 
the  act  ought  in  equity  to  be  an  estoppel,  which  act  should 
be  during  the  currency  of  the  contract.  An  assessment 
after  the  application  of  steam,  with  a  knowledge  of  such 
alteration,  would  no  doubt  have  been  an  estoppel.  But 
after  a  policy  has  been  declared  forfeited  for  unauthorized 
alteration,  a  resolution  directing  an  assessment  on  all 
policies  "  in  force,"  which  was  assessed  on  the  forfeited 
policy,  and  paid  without  compulsion  by  the  insured,  who 
knew  of  the  declaration  of  forfeiture,  is  not  a  waiver,  it 
is  a  mere  mistake.  After  a  policy  is  forfeited,  it  can  only 
be  renewed  by  express  agreement.  Diehl  v.  Adams  Court- 
ty  Mut.  Ins.  Co.  58  Pa.  St.  443.     1868. 

§  14.  When  the  company  has  a  right  to  cancel  the 
policy  upon  increase  of  risk,  paying  back  the  unexpired 
premium,  qucere,  whether  it  is  not  bound,  if  it  judges  the 
risk  increased,  to  cancel  the  policy  and  notify  the  assured 
thereof,  and  not-  retain  the  unearned  premium,  nor  let  the 
assured  believe  himself  still  protected  ?  Viele  v.  Ger* 
mania  Ins.  Co.  26  Iowa,  9.    1868. 

§  15.  Premises  described  thus,  "  occupied  as  a  brew- 
ery," were  vacant,  with  the  company's  knowledge  when 
insured,  and  remained  vacant  until  burnt — a  clause  of  for- 
feiture if  the  premises  should  become  unoccupied  does 
not  defeat  the  insurance.  Commercial  Ins.  Co.  v.  Spank- 
neble,  62  111.  53.     1869. 


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275 


§  16.  The  general  agent  ordering  a  cancellation  of  the 
policy,  is  a  recognition  of  its  validity.  The  very  fact  of 
an  attempt  to  cancel  it  is  an  admission  that  there  is  a 
policy  capable  of  being  canceled,     ^tna  Ins.  Co.  v.  Ma- 


guire, 


51  111.  342.     1869. 


§  17.  Where  a  company  know  and  acquiesce  in  the 
acts  of  their  agent,  which  induce  the  public  to  believe 
him  vested  with  power  to  do  such  acts,  such  as  to  issue  a 
policy  upon  property  outside  his  particular  locality,  it 
cannot  allege  want  of  authority  afterwards.  Nor,  semhle^ 
for  such  acts  as  appear  usual  and  proper  in  the  business  in 
which  the  agent  is  engaged,  ^tna  Ins.  Co.  v.  Maguire, 
51  111.  342.     1869. 

§  18.  Defense  to  a  suit  on  a  mutual  policy  was  that 
the  plaintiff  has  taken  the  benefit  of  the  insolvent  laws, 
and  therefore,  not  being  bound  on  the  premium  note,  the 
policy  was  not  binding.  Interest  had  been  paid  on  the  note 
up  to  the  date  of  the  fire.  It  was  held^  that  as  such  dis- 
charge released  his  liability  on  the  premium  jQote,  the  in- 
surance was  no  longer  binding  for  want  of  mutuality. 
That  the  proceedings  in  insolvency  not  being  in  a  court 
of  record,  so  as  to  give  constructive  notice,  and  there  be- 
ing no  actual  notice,  the  company,  in  receiving  interest  on 
the  premium  note,  had  not  acted  with  full  knowledge  of 
the  facts,  and  such  receipts  were  therefore  no  estoppel. 
The  defendant  may  also  show  that  the  a^ent  collecting  the 
interest  had  only  special  authority  and  limited  powers. 
Revnolds  v.  Mut.  F.  Ins.  Co.  of  Cecil  County,  34  Md.  280. 
1870. 

§  19.  The  president  pledged  the  company's  stock  to 
secure  a  note  for  its  benefit ;  whether  he  had  authority  or 
not,  the  acquiescence  of  the  directors  ratified  the  act  and 
bound  the  company.  Bezou  v.  Pike,  Lapeyre  &  Bro.  23 
La.  An.  788.     1871. 

§  20.  Policies  on  a  museum  prohibited  assignments 
of  itself,  or  sale  of  the  goods  without  consent  endorsed. 
The  assured  having  sold  the  property,  the  policies  were 
sent  in  with  notice  of  the  sale,  and  a  request  to  insu'-^  the 
vendee.    The  same  policies  were  returned,  endorsed '     ^ss 


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EVIDENCE. 


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clerk  or  acting  secretary, 
dorsement  was  made,  and  signed  by  the  president :  "  This 
policy  is  hereby  changed  to  cover  chairs,benches,  and  fur- 
naces, instead  of  museum  collection,  which  is  removed." 
Held^  That  the  endorsements  constituted  valid  contract 
of  insurance.  That  the  assured  had  a  right  to  presume 
that  the  first  endorsement  by  the  acting  secretary  in  charge 
of  the  ojfice  was  done  by  rightful  authority.  Northrup 
V.  Mississippi  Valley  Ins.  Co.  47  Mo.  435.    1871. 

§  21.  Policy  on  goods  "in  the  first  story  "  of  a  certain 
building.  Afterwards  the  assured  moved  upstairs,  and, 
on  paying  the  premium  of  the  next  year,  showed  that  fact 
to  the  co'Tipany.  A  simple  receipt  of  renewal  was  given 
without  jp»  oifying  the  change  of  story.  Held^  To  suppose 
the  compai.;  Md  not  intend  a  valid  insurance  would  im- 
pute a  fraudulent  intent,  and  the  reference  to  the  first  story 
m  the  poli.  r  is  modified  by  the  notice  and  acceptance  of 
premium.  Ludwig  v.  Jersey  City  Ins.  Co.  48  N.  Y.  379. 
1872. 

See  Waiver,  also  AUenation,  §  12.  69,  82.  Application,  29,  80,  40,  SO,  68. 
Assignment,  68.  Classification  of  Bisks,  4.  Consummation  of  Contract,  27. 
Dependency  of  Policy  and  Premium  Note,  4.  Description  of  Property  In- 
sured, 27,  28.  Distance  of  Other  Buildings,  19.  Encumbrance,  22,  84,  48, 
4S,  46,  iS2,  66.  Endorsements,  7.  Evidence,  112.  Illegality  of  Contract,  6. 
Insurable  Interest,  42.  Mutual  Companies,  and  MemMrs  of,  24,  26.  Other 
Insurance,  26,  89,  106,  120, 186.  Parol  Contract,  21.  Parol  Evidence,  29, 
88.  ti-eliminary  Proofs,  26.  Premium  Notes,  6.  Rebuild,  Repair,  or  Re- 
place, 17.    Renewal  of  Policy,  6,  7.    Title,  64. 


EVIDENCE. 

§  1.  Defendant  was  indicted  for  setting  fire  to  her 
housp,  and  to  prove  that  the  house  was  insured  the  books 
of  the  insurance  office  were  produced,  in  which  was  an  en- 
try to  that  effect.  Held^  that  the  policy  was  the  best 
evidence,  and  no  evidence  from  tne  books  could  be 
admitted  unless  notice  had  been  given  to  produce  the 
policy.    Re2[,v.  Doran,  1  Esp.  127.    1791. 


EVroENCE. 


277 


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§  2.  The  insurance  company  cb  i-^.^v .  fraud  in  procur- 
ing an  over-valuatiou,  and  introduced  evidence  to  prove' 
it.  Held,  that  testimony  of  plai tiff's  good  character  was 
inadmissible  to  rebut  the  proof  of  fraud.  Such  evidence, 
for  such  a  purpose,  is  inadmissible  in  a  civil  suit.  Fowler 
V.  -^tna  Ins.  Co.  of  N.  Y.  6  Cowen,  N.  Y.  675.     1827. 

§  3.  Where  the  jury  adopted  the  assured's  estimate 
of  loss,  as  given  in  his  affidavit  of  loss,  and  there  was  no 
other  evidence  to  show  the  correctness  of  such  statement ; 
Held  J  that  there  must  be  a  new  trial,  and  that  assured  must 
prove  the  loss.  Moadinger  v.  Mechanics'  Fire  Ins.  Co.  2 
Hall,  N.  Y.  490.     1829. 

§  4.  The  opinions  of  experienced  underwriters,  as  to 
whether  the  erection  of  a  boiler-house  adjacent  to  a  build- 
ing insured  would  increase  the  risk,  are  not  competent 
testimony.  It  is  not  a  matter  of  science  or  skill ;  and  the 
jury  must  judge  for  themselves,  from  the  circumstances  in, 
evidence,  whether  the  risk  was  increased.  Jefferson  Ins. 
Co.  V.  Cotheal,  7  Wend.  N.  Y.  72.    1831. 

§  5.  Upon  an  issue  whether  plaintiff  was  interested 
in  goods  destroyed  by  fire,  if  a  witness  called  by  the 
plaintiff  state  that  invoices  of  the  goods,  and  letters  of  . 
advice,  purporting  to  be  written  by  him  at  Edinburgh, 
were  fabricated  in  London,  after  the  fire,  by  plaintiff's 
direction,  it  is  competent;  for  the  plaintiff  to  call  other  wit- 
nesses to  disprove  the  alleged  fabrication  and  show  the 
genuineness  of  the  documents.  Friedlander  v.  London 
Assurance  Co.  1  Nev.  &  Man.  31 ;  4  Baru.  <fe  Adol.  193. 
1832  (24  E.  C.  L.  47). 

§  6.  The  only  question  in  dispute  in  this  case  was  as 
to  value  of  the  goods  destroyed,  concerning  which  the 
judge  held  that  the  testimony  adduced  by  assured,  and 
not  circumstantially  contradicted  by  the  witnesses  of  the 
company,  although  not  so  entirely  explicit  as  might  be 
desired,  was  yet  sufficient  to  support  the  judgment ;  which 
was  therefore  affirmed.  Gillaume  v.  Louisiana  Ins.  Co.  6 
La.  117.    1833. 

§  7.  This  was  a  policy  on  the  stock  of  a  hair- worker ; 
and  the  assured,  to  show  the  amount  of  loss,  introduced 


278 


EVIDENCE. 


in  evidence  a  book  containing  an  account  of  stock  taken 
the  month  previous  to  the  loss,  and  also  other  accounts  of 
stock  running  through  several  i^ears  preceding.  The  com- 
pany offered  m  evidence  the  opinions  of  witnesses  skilled 
m  handwriting,  to  show  that  all  the  accounts  Were  written 
at  one  and  the  same  time.  Held^  that  this  evidence  was 
inadmissible.  Aho  held^  that  the  opinions  of  witnesses 
that  others  engaged  in  the  same  business  had  a  much  less 
stock,  were  inadmissible  to  show  a  fraudulent  over-state- 
ment of  his  stock  by  the  assured.  Phoenix  Fire  Ins.  Co.  v. 
PhUip,  13  Wend.  N.  Y.  81.     1834. 

§  8.  Evidence  having  been  given  to  show  that  the 
plaintiffs,  after  leaving  Ohio  had  a  quantity  of  valuable 
merchandise  in  Kentucky,  the  defendant  produced  the 
records  of  the  insolvent  commissioner  to  show  that  the 
plaintiffs  applied  for  and  obtained  a  discharge  under  the 
msolvent  law,  after  the  fire.  Held^  that  this  evidence  was 
admissible  to  show  a  state  of  things  inconsistent  with  his 
situation  in  Kentucky,  from  whence  to  infer  the  fraud  of 
the  plaintiff.  Harris  v.  Protection  Ins.  Co.  Wright,  Ohio, 
548.     1834. 

§  9.  Evidence,  that  buildings  in  Utica  insured  by  an 
agent  in  another  city,  would  not  have  been  insured  by  the 
regular  agent  of  Utica,  is  immaterial.  Lightbody  v.  North 
American  Ins.  Co.  23  Wend.  N.  Y.  18.     1840. 

§  10.  Parol  evidence,  or  testimonial  proof,  will  not 
be  received  to  show  that,  in  case  of  a  donation  of  a  house 
and  lot  by  authentic  act,  it  was  agieed  that  the  donor 
should  continue  to  receive,  and  enjoy  during  his  lifetime, 
the  rents  of  the  property.  Macarty  v.  Commercial  Ins. 
Co.  17  La.  365.    1841. 

§  11.  Representation  that  the  company  did  not  and 
would  not 'insure  property  in  the  city  of  Pittsburgh  and 
other  large  cities,  made  by  an  agent  only  authorized  to 
receive  applications  and  forward  them  to  the  company, 
whereby  assured  was  induced  to  become  a  member  of  the 
company,  Held^  not  to  be  within  the  scope  of  such  agent's 
authority,  and,  although  false,  not  admissible  in  evidence 
in  an  action  against  assured  by  the  con^pany,  for  the  pre- 


EVroENCE. 


279 


mium  note.  The  board  of  directors  decided  where  insur- 
ance should  he  taken,  and  neither  an  agent  nor  the  presi- 
dent had  authority  to  bind  the  company  by  such  repre- 
sentations. Hackney  v.  Alleghany  County  Mut.  Ins.  Co. 
4  Penn.  St.  185.     1846. 

§  12.  Any  evidence  conducing  to  show  that  damase 
consequent  upon  the  fire  was  less  than  that  claimed,  would 
be  admissible,  but  the  doctrine  relative  to  mitigation  of 
damages  has  no  application.  Franklin  Fire  Ins.  Co.  v. 
Hamm,  6  Gill,  Md.  87.    1847. 

§  13.  In  an  action  on  policy  of  insurance,  where  the 
question  of  value  was  in  issue,  the  defendant  was  permit- 
ted to  ask  a  witness,  who  was  clerk  in  an  adjoining  store 
of  about  the  same  size  and  with  a  like  stock,  what  was  the 
amount  of  stock  in  the  adjoining  store,  according  to  an  in- 
ventory which  had  been  taken,  and  the  relative  amount 
of  goods  in  each  store,  according  to  their  appearance,  with 
a  view  to  prove  that  plaintiffs  store  contained  a  smaller 
amount  of  stock  than  had  been  represented  by  his  witnesses. 
Howard  v.  City  Fire  Ins.  Co.  4  Denio,  N.  Y.  502.    1847. 

§  14.  The  defendant  read  in  evidence  an  affidavit  of 
plaintiff  in  the  preliminary  prooL,  for  the  purpose  of  con- 
tradicting it,  and  defeating  the  policy,  by  showing  "  fraud 
or  false  swear*  ig."  Heldy  that  it  was  proper  for  the  de- 
fendant to  read  the  affidavit,  but  that  it  was  not  to  be 
regarded  by  the  jury  as'evidence  in  favor  of  the  plaintiff 
of  the  facts  asserted  therein.  Howard  v.  City  Fire  Ins. 
Co.  4  Denio,  N.  Y.  502.    1847. 

§  15.  In  an  action  for  slander  against  an  agent  of  an 
insurance  company,  for  charging  the  assured  with  altering 
a  policy  of  insurance ;  Held,  th&t  the  policy  was  sufficiently 
proven  to  be  admissible  in  evidence,  when  it  had  been 
produced,  the  secretary's  signature  proven,  and  a  receipt 
from  the  agent  for  an  assessment  paid  by  the  plaintiff. 
Van  Allen  v.  Bliven,  4  Denio,  N.  Y.  455.     1847. 

§  16.  The  preliminary  proofs  are  not  admissible  in 
evidence  to  the  jury,  on  the  question  of  the  amount  of 
damages,  unless  the  policy  has  made  them  so.  Sexton  v. 
Montgomery  County  Mut.  Ins.  Co.  9  Barb.  N.  Y.  191.  1848. 


280 


EVIDENCE. 


§  17.    The  affidavit  and  examination,  under  oath  of 
assured,  having  "been  admitted  without  objection  on  the 
part  of  defendants,  is  competent  evidence  for  the  consider- 
ation of  the  jury,  on  the  question  of  the  amount  of  the 
loss.    Moore  v.  Protection  Ins.  Co.  29  Me.  97.    1848. 

§  18.  If  conditions  annexed  to  a  policy  represent  one 
class  of  buildings  or  property  as  more  hazardous  than  an- 
other, it  is  not  competent  to  show  that  they  are  not  so  in 
fact.    Kichards  v.  Protection  Ins.  Co.  30  Me.  273.     1849. 

§  19.  In  an  action  upon  policy  of  insurance,  the  plaint- 
iffs sought  to  introduce  in  evidence  a  paper,  written  by 
the  secretary  of  the  company,  giving  consent  to  additional 
insurance,  and  proved  his  signature;  but,  it  appearing 
that  the  paper  had*  been  mutilated,  and  a  material  part 
torn  off  from  the  bottom ;  Held^  that  the  refusal  of  the 
judge  io  let  it  ffo  to  the  jury  was  coiTect.  Tillou  v.  Clin- 
ton &  Essex  Mut.  Ins.  Co.  7  Barb.  N.  Y.  564.    1850. 

§  '>0.  Where  defense  is,  that  the  plai»  tiff  set  fire  to 
the  building  insured,  evidence  of  his  previ  .s  declarations 
to  his  lessor,  inconsistent  with  a  guilty  purpose,  is  admis- 
sible, as  part  of  the  res  geatce.  Klein  v.  Franklin  Ins.  Co. 
]3Penn.  St.  247.     1850. 

§  21.  The  defendants  introduced  witnesses  to  show 
that  the  plaintiff,  in  violation  of  a  stipulation  in  his  policy, 
had  deposited  ashes  in  wooden  casks  after  the  date  of  the 
policy.  The  plaintiff  introduced  witnesses  to  contradict 
this  testimony,  who,  to  a  cross-interrogatory  by  defend- 
ants, as  to  whether  ashes  had  not  been  thus  deposited 
prior  to  the  date  of  the  policy,  answered  in  the  negative  ; 
and  thereupon  defendants  offered  testimony  to  show  that 
ashes  had  been  thus  deposited  prior  to  the  date  of  the 
policy.  Heldy  th8,t  this  evidence,  at  this  stage  of  the  pro- 
ceedings, could  be  properly  offered  only  to  contradict  or 
impeach  iiie  witnesses  called  by  plaintiff,  and  was  incom- 
petent for  this  purpose,  as  the  answers  drawn  out  by  the 
cross-examination  did  not  relate  to  matters  material  to 
the  case.  Underbill  v.  Agawam  Mut.  Fire  Ins.  Co.  6 
Cush.  Mass.  440.     1850. 

§  22.    A  premium  note,  reciting  the  receipt  of  the 


EVIDENCE. 


281 


policy,  in  an  action  on  the  note,  is  evidence,  prima  faciei 
that  the  policy  was  issued.  New  England  Mut.  Fire  Ins. 
Co.  V.  Belknap,  9  Cush.  Mass.  140.     1851. 

§  23.  Evidence  that  the  agent  of  the  insurers  drew 
up  the  application,  and  knew  of  the  existence  of  buildings, 
omitted  to  be  mentioned  in  such  application,  as  standing 
within  ten  rods  of  property  to  be  insured,  is  inadmissible. 
Kennedy  v.  St.  Lawrence  County  Mut.  Ins.  Co.  10  Barb. 
N.  Y.  285.    1851. 

§  24.  Invoices,  books  of  account,  sales,  and  invento- 
ries of  stock  taken  immediately  after  a  fire,  and  the  testi- 
mony of  the  clerks  of  the  assured,  are  proper  evidence  of 
loss  by  removal  of  goods  when  endangered  by  fire.  Case 
V.  Hartford  Ins.  Co.  13  Dl.  676.     1852. 

§  25.  The  opinion  of  a  witness  as  to  the  value  of  a 
mill  which  he  had  never  seen,  and  only  knew  of  by  having 
heard  it  described  by  others,  is  not  admissible.  "Westlake 
v.  St.  Lawrence  County  Mut.  Ins.  Co.  14  Barb.  N.  Y.  206. 
1852. 

§  26.  The  assignor  is  a  competent  witness  to  prove 
the  value  of  tiie  property  insured,  and  therefore  his  de- 
tailed statements  to  the  insurers  of  the  cost  of  the  build- 
ing at  the  time  of  insurance  is  not  admissible,  he  himself 
bemg  present.  Westlake  v.  St.  Lawrence  County  Mut. 
Ins.  Co.  14  Barb.  N.  Y.  206.     1852. 

§  27.  Buildings  insured  were  called  brick  buildings, 
but  above  two  first  stories  the  walls  were  of  joists  filled 
in  with  brick  four  indies ;  Held^  that  there  was  no  error 
in  asking  a  builder  this  question :  "  Would  you  consider 
these  houses,  and  would  they  be  called  brick  houses,  or 
not  ? "  Mead  v.  Northumberland  Ins.  Co.  3  Selden,  N.  Y. 
530.     1852. 

§  28.  Evidence  of  a  practice  of  the  company,  upon 
the  happening  and  payment  of  losses  to  surrender  the 
note  and  cancel  policy,  is  not  admissible  to  vary  or  con- 
tradict the  terms  of  the  policy  or  premium  note.  New 
Hampshire  Mut.  Fire  Ins.  Co.  v.  Rand,  4  Fost.  N.  H.  428. 
1852.  Swamscot  Machine  Co.  v.  Partridge,  5  Fost.  N.  H. 
369.     1852. 


282 


EVIDENCE. 


§  29.  It  is  not  competent  for  the  underwriter  to  intro- 
duce evidence  to  show  that  the  actual  value  of  the  prop- 
erty, insured  is  less  than  the  amount  stated  in  c  valued 
policy,  except  for  the  purpose  of  showing  fraud  in  the  as- 
sured. Cushman  v.  North  Western  Ins.  Co.  34  Me.  487. 
1852. 

§  30.  Where  the  plaintiff  had  introduced  evidence  to 
show  that  the  president  and  secretary  of  the  company, 
when  consenting  to  the  assignment  of  the  policy  to  him, 
knew  that  the  property  had  been  sold  and  transferred  to 
him,  and  that  a  new  deposit  note  had  been  given  to  an 
agent  of  the  company  only  authorized  to  receive  and  for- 
ward applications ;  tield^  that  the  testimony  of  the  presi- 
dent and  secretanr,  that  they  had  no  such  knowledge,  was 
admissible  as  rebutting  testimony.  Fogg  v.  Middlesex 
Mut.  Ins.  Co.  10  Cush.  Mass.  337.     1852. 

§  31.  The  policy  in  controversy  was  on  a  stock  of 
goods.  At  time  this  policy  was  made,  another  policy,  in 
lavor  of  the  same  party,  was  made  on  the  building  in  which 
the  stock  was  kept.  Held^  that  a  copv  of  this  last  policy, 
with  the  indorsements  thereon,  the  original  being  lost,  was 
admissible  in  evidence,  if  it  had  any  bearing  upon  the 
other,  and  its  weight  was  for  the  jury.  Fogg  v.  Middle- 
sex Mut.  Ins.  Co.  10  Cush.  Mass.  337.     1852. 

§  32.  It  is  not  error  to  ask  witness,  who  was  an  ex- 
perienced and  practical  Hreman,  whether  in  his  opinion 
the  risk  from  fire  was  increased  by  certain  alterations  in  a 
building ;  for  such  purpose  he  is  an  expert.  Schenck  v. 
Mercer  County  Mut.  Ins.  Co.  4  Zabr.  N.  J.  447.     1853. 

8  33.  Opinions  are  only  admissible  where  the  nature 
of  the  inquiry  involves  a  question  of  science  or  art,  or  of 
professional  or  mechanical  skill,  and  then  only  from  wit- 
nesses skilled  in  the  particular  business  to  which  the 
question  relates.  Hartford  Protection  Ins.  Co.  v.  Harmer, 
2  Ohio  St.  452.     1853. 

§  34.  The  opinions  of  witnesses  engaged  in  the  insur- 
ance business,  as  to  the  materiality  of  the  fact  that  the 
building  insured  had  shortly  before  been  on  fire,  and  the 
effect  it  would  have  upon  the  mind  of  a  prudent  under- 


EVIDENCE. 


283 


writer,  if  communicated,  are  not  admissible  in  evidence. 
Hartford  Protection  Ins.  Co.  v.  Hai-mer,  2  Ohio  St.  452. 
1853. 

§  35.  An  offer  to  sell,  is  evidence,  at  least,  against 
the  person  offering,  that  the  property  was  not  worth  more. 
Hersey  v.  Merrimack  County  Mut.  Fire  Ins.  Co.  7  Fost. 
N.  H.  149.     1853. 

§  36.  Where  the  building  insured  is  described  in  the 
policy  as  "  occupied  as  a  storehouse,"  it  is  a  warranty  that 
the  building  is  occupied  as  a  storehouse  only.  The  ordi- 
nary signification  of  the  word,  "  storehouse,"  cannot  be 
changed  by  evidence  of  a  usage  in  a  different  sense,  reach- 
ing back  but  a  few  weeks,  nor  by  evidence  that  all  par- 
ties to  the  policy  knew  the  building  was  not  exclusively- 
occupied  for  storing.  It  cannot  be  inferred  from  such  evi- 
dence that  the  word  was  used  in  a  different  sense  from  the 
ordinary  meaning.  Wall  v.  East  River  Ins.  Co.  3  Duer, 
264.     1854. 

§  37.  The  rates  of  haizards,  instructions  to  their 
agents,  or  the  by-laws  of  the  company,  are  not  evidence 
on  the  part  of  the  company,  it  not  appearing  that  the  ad- 
verse parties  had  been  informed  of  their  terms.  Evidence 
is  admissible  of  the  testimony  of  a  witness  before  arbi- 
trators in  the  same  case,  he  being  at  a  distance  out  of  the 
State,  being  unmarried,  and  having  never  had  a  permanent 
residence  in  the  Statel  Insurance  Co.  v.  Johnson,  •23 
Penn.  St.  72.    1854. 

§  38.  Where  »,  general  assi^ment  for  the  benefit  of 
creditors  has  been  made,  the  assignor  is  rendered  a  com- 
petent witness  in  a  suit  by  the  assignee  on  a  policy  of  in- 
surance. Nor  is  any  notice  of  the  intention  of  the  plaint- 
iffs to  examine  the  assignor  as  a  witness,  necessaiy.  Nor 
is  it  error  to  allow  the  assignor  to  state  the  purpose  for 
which  the  securities  were  given  to  the  plaintiff  Allen  v. 
Hudson  River  Mut.  Ins.  Co.  19  Barb.  N.  Y.  442.    1854. 

§  39.  A  letter  from  secretary  of  the  company  to  as- 
sured, acknowledging  the  receipt  of  preliminary  proofs  and 
notice  of  loss,  and  aomitting  the  sufficiency  thereof,  is  suf- 
ficient evidence  of  the  time  when  they  were  given  to  and 


284 


EVIDENCE. 


received  by  the  company.    Troy  Fire  in8.  Co.  v.  Carpenter, 
4  Wis.  20.     1855. 

§  40.  In  a  suit  on  a  policy  on  machinery,  the  testi- 
mony of  one,  who  had  owned  it,  and  sold  it  to  the  plaint- 
iff, who  was  familiar  with  such  machinery,  having  had  it 
repaired,  estimates  made  for  other  machinery  of  a  similar 
kind,  <fcc.,  is  admissible  on  a  question  as  to  the  value  of 
the  machinery  destroyed.  Haskins  v.  Hamilton  Mut.  Ins. 
Co.  5  Gray,  Mass.  432.     1855. 

§  41.  In  an  action  on  a  premium  note,  the  note  itself 
makes  out  sl  prima  facie  case  of  compliance  with  the  re- 
quisitions of  statutes  in  regard  to  inrnrance  companies. 
Williams  v.  Cheney,  3  Gray,  Mass.  215.     1855. 

§  42.  The  answers  of  the  plaintiff  to  interrogatories 
filed  in  another  suit,  are  competent  evidence,  as  admissions, 
against  him.  Williams  v.  Cheney,  3  Gray,  Mass.  215, 
1855. 

§  43.  The  production  of  a  premium  note  to  an  in- 
surance company  is  prima  fade  evidence,  in  a  suit  on  the 
note  against  the  maker,  that  the  corporation  was  duly  or- 
ganized, and  had  capacity  to  make  and  enforce  the  contract 
declared  on.  Williams  v.  Cheney,  3  Gray,  Mass.  215. 
1855. 

§  44.  Evidence  was  given  of  a  vote  of  the  directors 
authorizing  the  secretary  to  assign  securities  to  a  given 
amount,  and  the  secretary  made  assignments  accordingly  ; 
and  afterward,  without  further  authority,  he  assigned  other 
securities,  the  note  in  suit  among  others,  and  substituted 
them  for  a  part  of  those  before  assigned.  There  was  evi- 
dence that  the  secretary  had  never  before  assigned  notes 
to  be  held  as  collaterals,  but  had  frequently  assigned  them 
for  purposes  of  disco^^nt.  Held^  that  this  evidence  should 
go  to  the  jury ;  and  from  it  they  might  decide  whether 
there  was  authority  to  assign  the  note  in  question.  Wil- 
liams V.  Cheney,  3  Gray,  Mass.  215.     1855. 

§  45.  W.  brought  a  suit  to  recover  on  a  lost  policy  of 
insurance ;  on  the  trial  he  was  sworn  to  prove  the  loss  of 
the  policy ;  he  testified  that  the  policy  had  never  come  to 
his  hands,  that  he   had   rever  received  it,  that  he  had 


EVIDENCB. 


285 


searched  for  it  among  his  papers,  and  that  he  had  no  such 
paper  in  his  custody  or  under  his  control.  Heldy  that  the 
proof  was  sufficient  to  establish  the  loss  of  the  policy. 
Sussex  County  Mut.  Ins.  Co.  v.  Woodruff,  2  Dutch.  N.  J. 
241.     1856. 

§  46.  An  application  for  insurance  was  dated  August 
1st,  1854,  and  it  therein  appeared  that  the  insurance  was 
for  five  years ;  the  amount  of  the  premium  paid  and  de- 
posit note  was  sufficiently  large  to  cover  an  insurance  for 
that  term ;  and  on  the  back  of  the  policy  was  stated  that 
the  policy  expired  August  1st,  1859  ;  but  in  the  body  of 
the  policy,  it  was  expressed  to  be  from  1st  of  August, 
1854,  to  August  1st,  1854.  Held,  that  other  parts  of  the 
contract  were  admissible  in  evidence  to  correct  what  was 
evidently  a  clerical  error.  Liberty  Hall  Association  v. 
Housatonic  Mut.  Fire  Ins.  Co.  7  Gray,  Mass.  261.     1856. 

§  47.  Proof  that  notices  to  all  parties  assessed  were 
made  and  deposited  in  the  post  office  by  the  secretary  and 
treasurer,  and  that  a  member,  when  afterwards  called  upon, 
refused  to  pay  on  other  grounds  than  want  of  notice,  is 
sufficient  evidence  of  notice  of  assessment  to  go  to  the 
jury.    Jones  v.  Sisson,  6  Gray,  Mass.  288.    1855. 

§  48.  "When  a  member  of  a  firm  describes  the  prop-  * 
erty  as  "  his  own,"  and  in  affidavit  in  preliminary  proofs 
states  he  is  the  principal  member  of  a  firm,  that  he  fur- 
nished all  the  capital,  <&c. ;  the  other  partner  is  competent 
to  testify  that,  although  ostensibly  a  partner,  he  yet  prac- 
tically had  no  interest  whatever  in  the  policy.  Irving  v. 
Excelsior  Fire  Ins.  Co.  1  Bosw.  N.  Y.  507.    1857. 

§  49.  In  an  action  on  policy  of  insurance  against  fire 
on  "  books,  type,  plates,  <fec.,  with  the  privilege  of  print- 
ing and  book  bindery,"  one  condition  of  which  excepts 
"  any  loss  occasioned  by  the  use  of  camphene ; "  evidence 
of  a  usage  in  similar  printing  establishments  to  use  cam- 
phene for  the  purpose  of  cleaning  type  and  rollers,  is  ad- 
missible. Harper  v.  City  Ins.  Co.  1  Bosw.  N.  Y.  520. 
1857. 

§  50.  Under  an  answer  stating  that  after  making  the 
survey  and  before  the  fire,  the  assured  removed  the  force 


V' 


I  'fill 


H 


286 


evio:ence. 


pump,  the  defendant  is  not  compeUed  to  prove  this  precise 
allegation,  but  may  show  that  there  was  no  force  pump  in 
the  distillery,  the  legal  eflfect  of  which  is  to  prove  the  alle- 

fation  in  his  answer,  that  the  pump  had  been  removed, 
'he  provisions  also  of  the  Code  in  New  York,  held  suffi- 
ciently broad,  to  enable  the  defendant  to  give  the  pro- 
posed evidence  in  respect  to  the  pump.  McComber  v. 
Granite  Ins.  Co.  15  N.  Y.  495.     1857. 

§  51.  Evidence,  that  three  weeks  before  the  fire  oc- 
curred, there  was  a  quantity  of  straw  lying  on  the  floor  of 
one  of  the  buUdings  insured ;  and  that  some  boys  had 
made  a  bonfire  of  tne  same,  in  the  alley,  with  a  trail  of 
straw  leading  to  the  building,  is  inadmissible.  White  v. 
Mutual  Fire  Assurance  Co.  8  Gray,  Mass.  566.    1857. 

§  52.  When  the  value  of  property  at  the  tiujie  of  fire 
is  put  in  is^ue  by  the  pleadings,  evidence  of  such  value  is 
relevant  at  the  trial;  nor  is  evidence  of  the  rent  of  the 
building  insured  too  remotely  circumstantial.  Cumber- 
land Valley  Mut.  Protection  Co.  v.  Schell,  29  Penn.  St.  31. 
1857. 

§  53.  Evidence  tending  to  show  that  a  policy  was  to 
take  effect  at  some  other  time  than  at  its  date,  is  not 
liable  to  objection  as  varying  a  written  contract,  and  is 
admissible.  Atlantic  Ins.  Co.  v.  Goodall,  35  N.  H.  328. 
1857. 

§  54.  Where  a  policy  is  produced,  to  which  printed 
by-laws  are  attached,  and  they  are  referred  to  in  the 
policy,  and  made  a  part  of  it,  the  same  evidence  which 
proves  the  policy  proves  the  by-laws.  Atlantic  Fire  Ins. 
Co.  V.  Sanders,  36  N.  H.  252.     1858. 

§  55.  Testimony  of  an  insurance  eicpert,  as  to  whether 
the  premium  of  insurance  would  be  increased  in  con- 
sequence of  *the  owner  vacating  a  dwelling-house,  is  incom- 
petent.    Joyce  V.  Maine  Ins.  Co.  45  Me.  168.     1858. 

§  56.  The  president  and  secretary  of  an  insurance 
company,  not  being  stockholders  therein,  are  competent 
witnesses  for  the  company  in  an  action  iipon  a  policy  exe- 
cuted by  the  company.  National  Fire  Ins.  Co.  v.  Crane^ 
16  Md.  260.     1860. 


EVIDBNCE. 


287 


§  57.  The  policies  and  applications  described  the 
property  insured  as  the  property  of  the  plaintiff's,  but  on 
the  trial  of  the  cause,  offered  no  evidence  of  their  title  to 
the  property.  Held^  that  in  mutual  insurance,  the  repre- 
sentations of  the  assured  in  respect  to  title,  stand  upon 
the  same  ^ound  with  other  representations,  and  the  legal 
presumption  is  that  they  are  true  until  they  are  proven 
false.  Nichols  v.  Fayette  Mut.  Ins.  Co.  1  Allen,  Mass.  63. 
1861. 

§  58.  The  affidavits  and  accounts  of  loss,  constituting 
the  preliminary  proofs,  are  evidence  that  the  plaintiff  has 
complied  with  the  requirements  of  the  policy  in  this  re- 
spect, but  are  not  evidence  in  his  favor  upon  the  amount 
of  the  loss.  Newmark  v.  London  <fe  Liverpool  Fire  &>  Life 
Ins.  Co.  30  Mo.  160.     1860. 

§  59.  The  opinions  of  witnesses,  who  had  no  knowl- 
edge of  the  store  and  its  contents  before  the  fire,  as  to  the 
amount  of  goods  in  value  which  the  plaintiff's  ftore  would 
contain,  and  especially  the  value  of  the  goovk  which  could 
have  been  packed  on  the  shelves,  are  not  admissible  in 
evidence.  Newmark  v.  London  &  Liverpool  Fire  &  Life 
Ins.  Co.  30  Mo.  160.     1860. 

§  60.  This  action  was  on  a  policy,  insuring  a  stock  of 
goods.  The  defense  was,  that  assured  had  fi'audulently 
over-stated  and  over-valued  the  amount  of  goods  lost,  in 
his  preliminary  proofs.  >  Held^  that  evidence  as  to  value 
of  the  building,  insured  in  another  company,  was  not  com- 
petent  on  the  question  as  to  the  value  of  goods.  But  the 
judge  before  whom  the  case  was  tried,  having  admitted 
such  evidence,  contrary  to  the  objection  of  defendant; 
Held,  that  defendant  miffht  introduce  rebutting  testimony 
as  to  the  value  of  the  building  containing  the  goods  in- 
sured. Ward  V.  Washington  Ins.  Co.  6  Bosw.  N.  Y.  229. 
1860. 

§  61.  Underwriters  will  not  be  permitted  to  express 
their  opinions  as  to  the  nature  of  a  risk,  whether  it  is 
more  or  less  hazardous;  like  other  witnesses,  they  can 
only  testify  to  facts.  They  do  not  come  within  the  rule, 
that  experts  may  testify  in  particular  cases,  and  that  per- 
mits men  of  professional  science  to  give  their  opinion  upon 


If 


288 


EVIDENCE. 


subjects  connected  with  the  arts.  Merchants  &  Man.  Mut. 
Ins.  Co.  V.  Washington  Mut.  Ins.  Co.  1  Handy,  Ohio,  408. 
1855. 

§  62.  In  an  action  upon  an  insurance  policy,  the  pre- 
liminary proofs  furnished  by  the  ass "» red  to  the  insurance 
company,  are  admiaaible  for  the  purpose  of  shovsring  a 
compliance  with  a  condition  of  the  policy ;  and  if  the  de- 
fendant desires  to  limit  the  effect  of  the  evidence,  he 
should  not  object  gentrally  to  its  admission,  but  should 
state  distinctly  the  ground  of  his  objection,  and  then,  if 
proper  instructions  on  the  subject  are  not  given  to  the 
jury,  the  error  will  be  corrected  on  appeal.  Bonner  v. 
Homelns.  Co.  13Wis.  677.     1861. 

§  63.  A  statement  of  loss  made  out  by  an  insured 
person,  under  oath,  as  required  by  the  policy  of  insurance, 
IS  not  evidence  as  to  the  extent  or  amount  of  the  loss,  in 
an  action  against  the  insurers,  nor  is  it  made  evidence  by 
the  fact  that  it  is  called  for  by  the  defendants.  Lycoming 
Ins.  Co.  V.  Schreffler,  42  Penn.  St.  188.     1862. 

§  64.  Though  the  insurer  does  not  object  to  the  regu- 
larity of  the  preliminary  proofs,  yet  the  insured  cannot 
prove  his  loss  or  the  particulars  of  it  by  them.  He  can- 
not make  evidence  for  himself.  Commonwealth  Ins.  Co. 
V.  Sennett,  41  Penn.  St.  161.    1862. 

§  65.  It  is  competent  to  prove  by  the  testimony  of  a 
witness,  that  he  forwarded  a  notice  of  the  loss  by  fire  to 
the  company,  and  to  read  to  the  iur^r  a  copy  of  that  no- 
tice, retained  at  the  time,  without  having  first  notified  the 
company  to  produce  the  notice.  Commonwealth  Ins.  Co. 
V.  Monninger,  18  Ind.  352.     1862. 

§  66..  Where  a  condition  of  a  policy  of  insurance  re- 
quires the  insured  to  deliver  an  account  of  their  loss,  with 
their  oath  or  affirmation  declaring  the  account  to  be  true 
and  just,  <&c.,  the  affidavit  of  the  insured  is  admissible  to 
prove  a  compliance  with  such  condition,  but  for  no  other 
purpose.  Phoenix  Ins.  Co.  v.  Lawrence,  4  Mete.  Ky.  9. 
1862. 

§  67.    In  an  action  by  the  receiver  of  an  insurance 


an( 
mai 
onel 

V. 


cot 


EVIDENCE. 


289 


company  upon  a  premium  note,  as  between  the  company 
and  one  of  its  members,  the  existence  of  the  corporatioa 
is  to  be  deemed  sufficiently  established.  Hyatt  v.  Whip- 
ple, 37  Barb.  N.  Y.  595.     1862. 

§  68.  Where  a  building  was  originally  constructed, 
and  several  times  used  for  the  purposes  of  an  exhibition 
of  industry  or  fair,  and  the  defendants,  knowing  its  use, 
had  several  times  insured  its  owners  in  respect  to  it,  and 
the  plaintiffs,  subsequently  becoming  its  owners,  procured 
the  defendants  to  insure  them  in  respect  to  it ;  Held^  that 
in  an  action  upon  the  policy  issued  to  the  plaintiff,  evi- 
dence of  the  former  insurances  was  admissible  as  tending 
to  show,  in  connection  with  other  facts,  that  the  defen(£ 
ants  were  aware  of  the  general  purposes  for  which  the 
building  was  used,  and  designed  to  assume  a  risk  of  the 
same  character.  Mayor  <fec.  of  New  York  v.  Exchange 
Fire  Iijs.  Co.  9  Bosw.  N.  Y.  425.     1862. 

§  69.  The  report  of  loss  made  out  by  the  agent  of 
the  company  is  not  evidence  to  go  to  the  jury,  as  to  the 
amount  of  loss,  in  an  action  upon  the  policy,  though  ac- 
companied by  the  affidavit  of  the  party  insured.  Lycom- 
ing County  Mut.  Ins.  Co.  v.  Schreffler,  44  Penn.  St.  269. 
1863. 

§  70.  The  record  of  proceedings  in  equity,  in  another 
State,  under  which  the  legal  title  to  real  estate  was  de- 
creed to  the  equitable  owner,  is  admissible  in  an  action  on 
an  insurance  policy  as  evidence  of  the  existence  of  an  in- 
surable interest  in  the  party  insured  at  the  date  of  the 
policy,  although  the  proceedings  were  not  commenced  un- 
til after  the  loss  had  occurred  on  which  the  action  was 
founded.  Coursin  v.  Pennsylvania  Ins.  Co.  46  Penn.  St. 
323.     1863. 

§  71.  A  witness,  in  an  action  on  a  policy  of  insur- 
ance, cannot  be  allowed  to  testify  what  is  meant  by  a  'per- 
manent  policy ;  it  not  appearing  to  be  a  term  of  art,  or 
one  employed  in  any  particular  business.  Baptist  Church 
V.  Brooklyn  Fire  Ins.  Co.  28  N.  Y.  153.     1863. 

§  72.     An  admission  by  the  secretary  of  an  insurance' 
company,  after  a  loss  had  occurred,  that  the  property  de- 
19 


290 


EVIDENCE. 


stroyed  was  insured  at  the  time  of  the  fire,  made  to  a  third 
person,  is  not  competent  as  principal  evidence  against  the 
company.  Baptist  Church  v.  Brooklyn  Fire  Ins.  Co.  28 
N,  Y.  153.     1863. 

§  73.  In  determining  the  question  whether  an  insurer 
positively  undertook  to  insure  or  stated  that  he  would 
see  about  it,  the  jury  are  authorized  to  consider  the  prob- 
ability of  the  applicants  being  satisfied  with  the  latter 
answer.  Audubon  v.  Excelsior  Ins.  Co.  27  N.  Y.  216. 
1863, 

§  74.  "Where  a  party  states  in  his  application  for  in- 
surance that  he  is  the  owner  of  the  property-,  by  virtue  of 
an  article  of  agreement  with  another,  he  cannot  be  allowed 
to  show,  in  an  action  on  the  policy,  that  at  the  time  of 
making  the  application,  he  told  the  agent  of  the  insurer, 
that  he  owned  the  building,  having  purchased  it  before  he 
took  the  contract  for  the  land ;  it  being  an  offer  id  contra- 
dict the  written  application  by  parol.  Birmingham  v» 
Empire  Ins.  Co.  42  Barb.  N.  Y.  457.     1864. 

§  75.  Where  by  the  by-laws  of  a  mutual  insurance 
company,  it  is  made  the  duty  of  the  secretary  to  keep  a 
record  of  the  doings  of  the  directors  and  of  the  company, 
as  well  as  to  receive  notice  of  a  loss ;  his  letters  addressed 
to  the  assured,  so  far  as  they  admit  a  notice  of  the  loss,  or 
communicate  the  doings  of  the  directors  thereon,  are  ad- 
missible in  an  action  upon  the  policy.  Lewis  v.  Mon- 
mouth Mut.  Fire  Ins.  Co.  52  Me.  492.     1864. 

§  76.  In  an  indictment  for  arson,  alleged  to  have  been 
committed  with  intent  to  defraud  an  insurance  company, 
it  ia  sufficient  to  prove  the  existence  of  the  corporation 
de  facto.    People  v.  Hughes,  29  Cal.  257.     1865. 

§  77.  Evidence  that  the  agent  of  an  insurance  com- 
pany frequently  waived  the  conditions  of  its  policies  re- 
quiring prepayment  of  premiums,  is  not  admissible  to 
raise  an  inference  of  waiver  in  a  particular  case  in  the 
absence  of  other  proof  tending  to  establish  such  waiver. 
Wood  V.  Poughkeepsie  Mut.  Ins.  Co.  32  N.  Y.  619.    1865. 

§  78.  In  an  action  for  loss  by  fire  of  a  brewery  and 
its  contents  where  the  plaintiffs  carried  on  distilling,  evi- 


EVCDENOE. 


291 


dence  that  they  had  taken  no  license  from  the  govern- 
ment ;  that  they  had  insured  in  other  companies  as  brew- 
ers without  disclosing  that  they  were  distillers,  and  that 
they  had  made  false  representations  to  other  companies, 
and  of  the  classification  of  risks  and  rates  in  other  com- 
panies, is  irrelevant.  People's  Ins.  Co.  v.  Spencer,  53 
Penn.  St.  353.     1866. 

§  79.  A  witness  familiar  with  the  mode  of  using 
benzole  in  patent  leather  factories  in  a  particular  place, 
may  be  permitted  to  testify  as  to  such  use ;  as  pertinent 
to  the  question  whether  the  plaintiiTs  use  of  that  article 
in  his  own  factory  had  been  according  to  the  customary 
mode  in  such  factories.  Citizen's  Ins.  Co.  v.  McLaughlin, 
53  Penn.  St.  485.     1866. 

§  80.  A  witness  who  has  been  many  years  an  officer 
of  an  insurance  company,  and  has  become  acquainted  with 
the  business  of  fire  insurance,  is  competent  to  give  his. 
opinion  as  to  the  effect  produced  by  the  erection  of  addi- 
tions to  the  buildings  insured.  Kern  v.  South  St.  Louia- 
Mut.  Ins.  Co.  40  Mo.  19.     1867. 

§  81.  Sworn  entries  in  the  Custom  House  of  the 
quantity  and  value  of  the  goods  imported  by  the  assured 
are  evidence  of  the  measure  of  damages  on  the  goods 
which  subsequently  burned  in  assured's  store.  Lazare  v. 
Phoenix  Ins.  Co.  8  U.  C,  C.  P.  136.    1859. 

S  82.  The  fact,  that  the  defendant's  book  of  entries 
of  risks  did  not  contain  the  one  in  question,  is  no  evi- 
dence in  his  favor  to  prove  the  oral  contract  was  not 
made ;  the  plaintiff  having  no  knowledge  of  the  defendant's 
custom  in  that  respect.  Sanborn  v.  Fireman's  Ins.  Co. 
16  Gray,  448.     1860. 

§  83.  Evidence  is  admissible  of  a  well-settled  cus- 
tom, that  "  store  fixtures  "  in  insurance  policies  applies  to 
tools,  furniture  and  all  movable  articles  of  shops  or  ware- 
houses, convenient  or  necessary  for  use  in  the  course  of 
trade.  Whitmarsh  v.  Conway  Fire  Ins.  Co.  16  Gray,  359.^ 
1860. 

§  84.    A  witness  having  forgotten  whether  he  had 


292 


EVIDENCE. 


given  notice  of  other  insurance,  can  ^ive  as  supportinff 
evidence,  that  it  was  his  custom  to  give  notice  m  such 
cases — -just  as  a  witness  to  a  writing  may  say  it  was  not  his 
custom  to  write  his  name  unless  he  had  seen  the  obligor 
or  testator  sign.  Eureka  Ins.  Co  v.  Robinson,  56  Pa.  St. 
256.     1867. 

§  85.  The  company's  secretary,  who  had  testified  that 
they  had  had  no  notice  of  additional  insurance,  cannot  be 
asked  his  opinion  whether  he  would  have  consented  to  an 
additional  msurance,  and  if  not,  why.  Quaere; — as  to 
whether  he  could  not  have  testified  as  to  facts  existing  at 
the  time  of  the  new  insurance,  rendering  a  consent  im- 
probable. Eureka  Ins.  Co.  v.  Robinson,  56  Pa.  St.  256. 
1867. 

§  86.  Declaration  of  one  in  charge  of  the  boat,  that 
he  was  part-owner,  made  by  his  obtaming  insurance  on 
his  interest  and  his  verbal  declarations,  that  he  was  part- 
owner  and  had  wilfully  caused  the  fire,  are  not  admissible, 
he  not  being  a  party  to  the  suit.  Eureka  Ins.  Co.  v. 
Robinson,  66  Pa.  St.  256.    1867. 

§  87.  An  insurance  agent,  unless  it  appears  that  he 
has  special  knowledge  in  the  course  of  his  business,  can- 
not be  called  as  an  expert  to  ^ive  his  opinion  as  to  what 
would  or  would  not  be  an  increase  of  risk.  Schmidt  v. 
Peoria  M.  and  F.  Ins.  Co.  41  111.  295.     1867. 

§  88.  Whether  taking  out  and  putting  in  fixtures, 
putting  in  new  floors  and  stairs,  having  a  stove,  <fec.,  in- 
creases the  risk  or  not,  is  within  the  common  knowledge 
of  men,  involves  no  peculiar  information,  and  the  opinion 
of  experts  thereto  is  not  admissible.  Lyman  v.  State  Mut. 
Ins.  Co.  14  Allen,  329.     1867. 

§  89.  The  original  bills  of  purchase  of  the  goods  lost 
being  in  the  company's  possession,  books  of  the  assured 
made  by  his  agent,  copied  from  a  blotter  and  compared 
with  the  original  bills,  the  agent  testifying  to  their  correct- 
ness, are  admissible  in  evidence  as  to  amount  of  loss.  De 
Groot  V.  Fulton  Fire  Ins.  Co.  4  Rob.  (N.  Y.  Sup.  Ct.)  604. 
1867. 


n 


EVIDENGE. 


293 


§  90.  An  appraisement  of  damage  made  by  apprais- 
ers mutually  appointed  under  an  agreement,  especially 
where  the  policy  requires  the  damage  to  be  so  ascertained, 
is  admissible  in  evidence  as  to  amount  of  damage.  De 
Groot  V.  Fulton  Fire  Ins.  Co.  4  Rob.  504.     1867. 

§  91.  Evidence  that  defendant  had  insured  the  prem- 
ises for  several  years,  and  knew  the  uses  to  which  it  was 
applied  and  the  nature  of  the  risk,  is  admissible  to  aid  the 
construction  of  the  policy.  Mayor  of  N.  Y.  v.  Exchange 
Fire  Ins.  Co.  3  Keyes,  436.    1867. 

§  92.  The  declarations  of  one  of  the  parties  for  whose 
benefit  the  suit  is  brought,  are  admissible  for  defendants. 
Rosa  V.  Commercial  Union  Ass.  Co.  26  U.  C.  Q.  B.  559. 
1867. 

§  93.  Where  the  account  books  of  the  plaintiff  are 
offered  to  show  the  amount  of  goods  burnt,  and  there  are 
so  many  alterations  in  the  books  as  would  justify  their  ex- 
clusion from  the  jury  if  unexplained ;  if  such  exclusion  is 
not  requested,  it  may  be  submitted  to  the  jury  whether 
the  alterations  are  fraudulent,  and  if  there  is  also  explan- 
atory evidence,  the  question  of  fraudulent  alteration 
Eroperly  belongs  to  the  jury.  Kelly  v.  Indemnity  Fire 
IS.  Co.  38  N.  Y.  322.     1868. 

§  94.  The  jury  may  l^ke  to  its  room  the  sworn  state- 
ment of  losses  by  plaintiff,  being  documentary  evidence 
within  the  meaning  of  the  Practice  Act.  Clark  v.  Phoenix 
Ins.  Co.  36  Cal.  168.     1868. 

§  95.  In  a  suit  on  a  policy  on  stock  of  boots  and 
shoes;  the  insured  testifying  as  to  a  further  policy  of 
$1,500  on  the  stock  of  boots  and  shoes,  leather  and  find- 
ings, was  asked,  "  what  amount  of  insurance  did  you  have 
on  leather  and  findings?"  in  that  company.  Held,  not 
error  to  overrule  the  question,  the  policy  containing  no 
specification  of  amount;  it  is  impossible  to  state  the 
amount  on  any  particular  item.  Peoria  M.  <fe  F.  Ins.  Co. 
V.  Perkins,  16  Mich.  380.     1868. 

§  96.    Per  Strong  J.  at  Nisi  Frius.    An  extraordinary 
premium  is  evidence,  though  not  proof  that  an  unusual 


294 


EVIDENOE. 


risk  is  assumed,  though  not  that  a  concealed  or  misrepre- 
sented fact  is  at  the  insurer's  risk.  Franklin  F.  Ins.  Co.  v. 
Brock,  57  Pa.  St.  74.    1868. 

§  97.  The  act  of  incorporation  making  the  members 
•of  a  mutual  company  competent  witnesses  when  not  indi- 
vidually interested  a  fortiori,  makes  the  managers  also 
competent,  they  being  members,  unless  their  official  con- 
duct is  involved  in  any  issue,  in  which  case  of  course  they 
are  individually  interested.  Diehl  v.  Adams  Co.  Mut. 
Ins.  Co.  58  Pa.  St.  443.     1868. 

§  98.  The  usual  habit  of  the  insured  as  to  his  manner 
of  Tceeping  benzine  is  not  relevant,  except  at  the  time  of 
the  fire,  as  by  the  terms  of  the  policy  storing  thereof  only 
suspends  the  insurance  during  such  use.  Maryland  F.  Ins. 
Co.  v.  Whiteford,  31  Md.  219.     1869. 

C      §  99.    Plaintiff  may  show  that  the  president  and  secre- 
^'  taiy  had  promised  to  pay  the  loss ;  it  is  evidence  that  they 
had  exammed  its  circumstances  and  deemed  it  a  fair  one. 
I  Aurora  F.  Ins.  Co.  v.  Eddy,  55  111.  213.     1870. 

§  100.    When  the  defense  is  that  assured  set  hre  to  the 
premises,  the  rule  of  civil  cases,  viz.,  preponderance  oi* 
evidence,  not  the  one  in  criminal  cases,  applies.    Confes- 
sions extorted  or  not  voluntary  must  not  be  regarded. 
Scott  V.  Home  Ins.  Co.  1  Dillon,  C.  C.  105.     1870. 

§  101.  "Whether  it  is  error  or  not  to  admit  in  evidence 
a  policy  without  also  producing  the  application,  if  made 
part  of  it,  or  accounting  for  its  absence,  the  subsequent 
production  of  the  application  by  the  opposite  party  cures 
the  error.  Evidence  offered  to  prove  accident  or  mistake 
of  the  agent  in  the  writings,  if  erroneously  admitted, 
being  found  competent  for  another  purpose,  the  error  is 
cured.*  Lycoming  Mut.  Ins.  Co.  v.  Sailer,  67  Pa,  S*-.  lOO. 
1870. 

§  102.  There  being  n  j  direct  testimony  obtaiiia'  ,  to 
contradict  the  statements  of  the  assured  as  to  the  aiu^junt 
of  his  retail  grocery  ^oods  destroyed,  that  their  cost  value 
was  $65,000,  and  his  aggregate  sales  for  the  preceding 
year  was  $120,0C0;   it  is  competent  to  prove  by  other 


"U*H 


EVIDENCE. 


295 


grocers,  whose  annual  sales  were  as  large  as  his,  that  for 
the  six  years  prior  they  had  not  on  hand  at  any  one  time 
more  than  one-fifth  of  their  annual  sales.  That  by  the 
general  course  of  trade  if  the  plaintiff's  sales  amounted 
to  $120,000,  his  loss  could  not  have  exceeded  $24,000. 
But  each  witness  can  only  testify  to  his  own  experience, 
not  to  "  the  course  of  trade."  Insurance  Co.  v.  Weide,  11 
Wallace,  438.     1870. 

§  103.  Clause  requiring  consent  to  change  of  occu- 
pancy increasing  the  risk,  or  any  increase  of  risk.  Wit- 
nesses cannot  be  allowed  to  testify  that  leaving  a  house 
unoccupied  increases  the  risk.  Testimony  that  the  de- 
fendant charged  higher  premium  for  unoccupied  houses 
not  shown  to  have  been  known  to  plaintiff  is  not  admis- 
sible. But  the  test  of  increase  of  risk,  that  the  under- 
writers generally  charge  more  for  unoccupied  houses,  is 
competent  evidence,  and  being  a  matter  within  the  pe- 
culiar knowledge  of  those  versed  in  insurance  business 
experts  can  testify  thereto.  Luce  v.  Dorchester  Mut.  F. 
Ins.  Co.  105  Mass.  297.     1870. 

§  104.  A  witness  is  not  made  competent  to  give  his 
estimate  of  the  amount  oi'  goods  in  the  store  at  the  time 
of  the  fire,  by  his  having  been  in  there  quite  frequently, 
when  he  is  ignorant  of  market  values,  of  the  quantity  and 
quality  of  those  destroyed,  and  had  no  experience  in  the 
business :  such  testimony  does  not  state  facts,  nor  show 
him  competent  to  give 'an  opinion.  Teerpenning  et  al.  v. 
Corn  Exchange  Ins.  Co.  4  Handy,  279.     1871. 

§  105.  Preliminary  proof  is  not  evidence  to  the  jury 
of  the  facts  therein,  viz: — of  ownership  or  loss,  it  is  only 
evidence  of  compliance  with  the  terms  of  a  warranty. 
Southern  Ins.  &  Tr.  Co.  v.  Lewis  &  Bros.  42  Ga.  587. 
1871. 

§  106.  A  correct  inventory  of  certain  merchandise 
destroyed  by  fire  had  been  made  by  the  witness,  and  cor- 
rectly set  down  in  a  book,  which  was  burnt ;  a  correct  copy 
of  the  footings  copied  into  the  fly-leaf  of  the  new  ledger 
are  admissible  in  evidence  of  the  value,  in  a  suit  against 
the  company,  although  the  witnesses  have  no  independent 


(  : 


^ , 


296 


EVIDENCE. 


recollection  of  the  correctness  of  the  value.    Ins.  Co.  v. 
Weides,  14  Wall.  375.     1871. 

§  107.  The  preliminary  proofs  are  not  evidence  to  the 
jury  of  a  loss,  and  if  necessary  to  lay  them  before  the  jury, 
it  must  be  with  a  caution  against  considering  them  as 
evidence  of  the  fact  or  extent  of  the  loss.  Citizens'  F. 
Ins:  Co.  V.  Doll,  35  Md.  89.     1871. 

§  108.  An  expert  is  inadmissible  to  testify  whether 
an  unoccupied  building  is  a  more  hazardous  risk  than  is 
an  occupied.  Cannell  v.  Phoenix  Ins.  Co.  59  Me.  682. 
1871. 

§  109.  After  the  loss,  the  president — supposing  that 
resistance  to  paying  would  be  made,  on  the  ground  that 
the  building  was  set  on  fire — admitted  to  assured  when 
presenting  the  claim,  that  the  indorsements  "were  all 
right,  and  if  other  companies  paid  he  would."  Heldy 
this  admission,  being  made  in  the  execution  of  the  officer's 
duty  concerning  a  matter  upon  which  he  is  called  to  act,, 
and  which  is  within  the  scope  of  his  authority,  is  evidence 
against  the  company,  as  part  of  the  res  ^estcB,  that  the  en- 
dorsements were  made  by  proper  authority.  Northrup  v^ 
Mississippi  Valley  Ins.  Co.  47  Mo.  435.    1871. 

§  110.  Whether  premises  are  so  used  as  to  be  ren- 
dered more  hazardous,  is  a  question  for  the  jury  and  not 
resting  on  the  opinion  of  witnesses.  Northrup  v.  Missis- 
sippi Valley  Ins.  Co.  47  Mo.  435,  443.    1871. 

§  111.  J^er  Currier y  J.  A  draft  signed  by  the  secre- 
tary of  an  insurance  company,  alone,  does  not  bind  the 
company  in  the  absence  of  a  law  or  usage  recognizing 
such  power.  First  Nat'l  Bk.  of  Kansas  City  v.  Hogan,  47 
Mo.  472.     1871.   • 

§  112.*  A  general  agent  having  power  under  the  di- 
rection of  the  executive  committee  to  settle  claims,  was 
in  the  habit  of  adjusting  claims  for  loss,  and  drawing 
drafts  for  the  same  which  the  company  honored  and  paid. 
The  community  could  presume  authority  to  draw  such 
drafts.  Therefore  in  a  suit  on  a  draft  by  such  agent 
against  the  company,  evidence  of  such  similar  drafts  is 


EXAMINATION   UNBER  OATH. 


297 


admissible.    Fayles  v.  National  Ins.  Co.  of  Hannibal,  Mo» 
49  Mo.  380.    1872. 

See  Parol  Evidence,  Burning  by  Design,  and  Burden  of  Proof.  Also, 
Agent,  §  10,  13,  40,  47,  48,  70.  Alienation,  41.  Application,  0, 18,  20, 68,  71. 
Aflseflsments,  77.  Assignment,  10.  Books  of  Account  and  Vouchers,  6. 
Certificate,  8.  Consummation  of  Contract,  11, 18.  Damages,  10, 12.  Estop- 
il,  12, 16.    False  Swearing,  4,  6.    Foreign  Ins.  Co.'s,  10, 17.    Increase  of 


isk,  20.  Insurable  Interest,  28.  Interest  in  Policy,  27.  Mutual  Co.'s,  and 
Members  of,  26,  28.  Negligence,  6.  Other  Insurance,  9,  47,  68, 186.  Parol 
Contract,  2,  7.  Payment  of  Premium,  8,  7.  Pleading  and  Practice,  88,  96. 
Preliminary  Proof,  16,  28,  78.  Premium  N*^  tes,  17,  32.  Rebuild,  Repair  or 
Replace,  8.  Reform  of  Policy,  2,  5,  7.  Responsibility  of  Assigne.*  for  Acts 
of  Assimor,  8.  Re-Insurance.  9.  Stock  Notes  and  Subscriptions,  15.  Stor- 
ing or  Keeping,  12.  Title,  8,  48.  Usage,  7,  8, 10.  Use  and  Occupation,  71, 
72.  What  Property  is  Covered  by  Policy,  22,  23.  Who  may  Sue,  27.  Writ- 
ten Portion  of  Policy,  7. 


EXAMINATION   UNDER  OATH. 

§  1.  The  condition  requiring  assured  to  "  submit  to  an 
examination  under  oath ;  Hdd^  to  have  been  complied 
with  after  submitting  to  one  examination,  although  he  re- 
fused to  answer  under  oath  questions  asked  subsequently. 
Moore  v.  Protection  Ins.  Co.  29  Me.  97.     1848. 

§  2.  Where  policy  required  protection  of  "  vouchers, 
and  an  examination  under  oath,"  and  assured  fails  to 
comply  with  such  requisition  without  excuse  or  justifica- 
tion, he  cannot  recover ;  but  his  failure  is  to  some  extent 
a  question  of  fact  and  intention.  K  it  was  to  gain  time 
and  lessen  the  chances  of  detecting  fraud,  it  would  be 
fatal ;  but  if  to  save  the  assured  or  his  family  from  an 
epidemic,  it  would  not.  Phillips  v.  Protection  Ins.  Co.  14 
Mo.  220.     1851. 

8  3.  It  was  stipulated  in  an  insurance  policy,  that 
the  insured  should,  if  required,  submit  to  an  examination, 
under  oath,  by  the  agent  of  the  company,  and  answer  all 
questions,  &c.,  and  subscribe  such  examination  when  re- 
duced to  writing,  and  until  examination,  being  required, 
was  had,  the  loss  should  not  be  payable.      In  an  action 


298 


EXECUnONB. 


upon  the  policy,  it  appeared  that  such  an  examination, 
being  required,  had  been  in  part  had,  and  reduced  to 
writing,  but  not  subscribed,  and  without  objection  from 
the  insured,  was  adjourned  for  two  or  three  weeks,  when  it 
was  to  be  completed ;  but  that  when  applied  to  for  that 
purpose  by  the  agent,  within  the  time  lunited,  the  insured 
refi-ised  to  submit  to  a  further  examination,  or  to  subscribe 
that  already  taken.  Held,  that  such  refusal,  under  the  cir- 
cumstances of  the  case  was  unwarranted,  and  therefore,  by 
the  terms  of  the  policy  the  loss  had  not  yet  become  pay- 
able.   Bonner  v.  Home  Ins.  Co.  13  Wis.  677.    1861. 

§  4.  Where  the  assured  is  required,  besides  furnish- 
ing preliminary  proofs,  to  submit  to  an  examination  under 
oath,  and  his  books  are  withheld  on  such  examination,  so 
that  he  speaks  from  memory  only,  his  mistakes  are  open 
to  correction.  Commercial  Ins.  Co.  of  Chicago  v.  Huck- 
berger,  52  111.  464.     1868. 

§  5.  The  refusal  of  assurea  to  submit  to  an  examina- 
tion under  oath,  under  a  clause  that  the  loss  shall  not  be 
payable  until  such  examination,  is  not  a  forfeiture,  but  the 
loss  is  not  payable  until  it  is  done.  Weide  v.  Germania 
Ins.  Co.  1  Dillon  C.  C.  441.    1870. 

§  6.  A  condition  that  the  loss  shall  not  be  payable 
until  the  assured,  if  required,  shall  submit  to  an  examina- 
tion under  oath ;  Held^  the  assured  cannot  be  compelled, 
as  a  condition  of  recovery,  to  state  on  what  terms  he  had 
settled  with  other  companies.  Ins.  Cos.  v.  Weides,  14 
Wall.  375.     1871. 

See  GamiBhrnent  or  Trustee  Process,  §  16. 


( 


f 

11: 


EXECUTIONS. 


§  1.  The  charter  provided  "that  execution  shall  not 
issue  on  any  judgment  against  said  company,  until  after 
the  expiration  of  three  months  from  the  rendition  there- 


FALSE  SWBABING. 


299 


of."  Held.^  that  the  provision  was  binding ;  and  execu- 
tion was  ordered  staid  for  three  months,  although  a  judg- 
ment on  the  same  claim  had  been  rendered  before  in 
another  State.  Judkins  v.  Union  Mut.  Fire  Ins.  Co.  39 
N.  H.  172.     1859. 

§  2.  The  charter  of  this,  which  was  a  mutual  com- 
pany, provided  for  a  division  of  the  risks  into  several 
classes,  and  further  provided  that  the  premium  notes  in 
each  class  should  only  be  liable  for  assessments  on  losses 
appertaining  to  that  clast*.  Execution  was  restricted  to 
run  only  against  the  fiinds  a;»d  property  of  the  defendant 
corporation  belonging  to  the  class  to  which  the  note,  on 
which  judgment  had  been  rendered,  belonged.  Judkins 
v.  Union  Mut.  Fire  Ins.  Co.  39  N.  H.  172.     1859. 


FALSE  SWEARING. 

§  1.  By  the  term  "false- swearing,"  as  used  in  the 
conditions  of  the  policy,  the  jury  were  instructed,  was 
meant  an  attempt  to  defraud  the  company,  by  swearing 
intentionally,  and  with  bad  motives,  to  the  existence  of 
property  which  the  insured  had  never  lost,  or  by  greatly 
overcharging  that  which  was  destroyed,  or  not  acknowl- 
edging that  which  had  been  saved.  Moadinger  v.  Me- 
chanics' Fire  Ins.  Co.  2  Hall,  N.  Y.  490.     1829. 

§  2.  Condition  that  if  there  appear  fraud  in  the  claim, 
or  fraud  or  false  swearing  or  affirming  in  support  thereof, 
the  claimant  shall  forfeit  all  benefit  under  the  policy.  The 
insured  swore  his  loss  at  £1,085.  The  jury  returned  ver- 
dict in  his  favor  of  £500.  Kule  nisi  for  new  trial  obtained 
on  the  ground  that  the  finding  of  £500  damages,  instead 
of  the  amount  sworn,  was  in  effect  a  verdict  for  defend- 
ants under  the  said  condition.  Bule  made  absolute. 
Levy  V.  Baillie,  7  Bing.  349  (20  E.  C.  L.  160).  1831. 
Same  case,  5  Moore  &  Payne,  208.    1831. 

§  3.  If  statement  of  loss  sworn  to  by  claimant,  is  dis- 
proved by  witnesses,  he  is  precluded  on  that  ground  from 


800 


FALSE  8 WEAR      G. 


'     fi 


recovering  on  the  policy.    Regnier  v.  Louisiana  State 
Marine  &  Fire  Ins.  Cfo.  12  La.  336.     1838. 

§  4.  Under  a  policy  of  insurance  which  provided  that 
if  there  should  be  an^  false  swearing  on  the  part  of  the 
assured,  he  should  forfeit  all  claim  to  the  policy,  a  failure 
by  the  latter  to  sustain  his  affidavit  by  direct  evidence  to 
the  amount  claimed,  will  not  be  considered  as  proof  of 
having  sworn  falsely,  and  thereby  forfeit  the  insurance. 
In  cpan  policies  it  is  often  extremely  difficult  to  prove 
the  actual  value  of  the  goods  lost ;  it  sufiBces  to  show  1^ 
testimony  the  great  probability  of  the  truth  of  the  affi- 
davit; and,  in  weighing  this  testimony  the  character  of 
the  assured,  as  well  as  the  credibility  of  the  witness,  must 
be  considered.  Marchesseau  v.  Merchants'  Ins.  Co.  1  Bob. 
La.  438.  1842.  Wightman  v.  Western  Marine  &  Fire 
Ins.  Co.  8  Rob.  La.  442.     1844. 

§  5.  When  an  agent,  by  whom  insurance  had  been 
eflfected,  he  being  named  as  agent  in  the  policy,  swears  to 
the  loss  as  his,  the  oath  will  be  considered  as  referring  to 
the  character  in  which  he  was  recognized,  and  acted  when 
he  effected  it,  and  not  as  proof  of  perjury.  Henderson  v. 
Western  Marine  &  Fire  Ins.  Co.  10  Rob.  La.  164.    1845. 

§  6.  In  an  action  on  a  policy  of  insurance  effected  on 
account  of  the  plaintiff  by  an  agent,  in  agent's  own  name, 
the  record  of  a  suit  between  the  agent  and  the  same  in- 
surer, on  agent's  own  policy,  will  not  be  admissible  to 
prove  fraud  and  false  swearing  on  the  part  of  the  plaintiff 
in  the  latter  suit,  or  to  show  what  portion  of  the  property 
insured  belonged  to  the  plaintiff  in  the  action  in  which  it 
is  offered  in  evidence.  The  fraud  and  false  swearing  on 
the  part  of  the  agent,  being  in  his  own  case,  and  for  his 
own  purpose,  was  irrelevant ;  and  the  principals  not  being 
party  to  the  suit,  the  matter  cannot  be  used  against  them. 
Henderson  v.  Western  Marine  &  Fire  Ins.  Co.  10  Rob.  La. 
164.     1845. 

§  7.  Where  in  an  action  on  a  policy  of  fire  insurance, 
providing  for  a  "  forfeiture  of  all  claims  under  it  in  case  of 
false  swearing  on  the  part  of  assured,"  there  is  a  differ- 
ence between  the  amount  of  the  loss  sworn  to  by  the 


FALSE  SWEABmO. 


801 


insured,  in  bis  affidavit,  and  the  amount  proven  on  the 
trial,  such  difference  is  not  conclusive  eviaence  of  fraud 
and  "false  swearing:"  but  the  burden  of  pr-oving  that 
the  difference  was  the  result  of  error  and  not  of  an  in- 
tention to  defraud,  is  on  the  plaintiff,  and,  in  the  absence 
of  any  satisfactory  explanation,  it  must  be  considered  as 
imposing  upon  the  assured  forfeiture  of  all  claims  under 
the  policy.  Hoffman  v.  Western  Marine  <fe  Fire  Ins.  Co. 
1  La.  An.  216.    1846. 

§  8.  Where  assured's  affidavit  of  io^i  claimed  damage 
to  the  amount  of  $2,800,  and  the  jury  brought  in  a  ver- 
dict for  only  $1,850 ;  Held^  not  to  be  evidence  of  such 
fraud  or  "  false  swearing  "  as  to  justify  a  new  trial  where 
the  jury  had  been  instructed  to  find  for  the  defendant,  if 
they  should  find  that  there  had  been  any  "  false  swearing  " 
on  the  part  of  the  assured.  Moore  v.  Protection  Ins.  Co. 
29  Me.  97.     1848. 

§  9.  No  false  swearing  by  the  assured  in  relation  to 
the  extent  of  his  loss,  should  be  allowed  to  defeat  a  re- 
covery under  a  condition  "  that  any  false  swearing  should 
forfeit  all  claims  under  the  policy,"  unless  it  be  intention- 
ally false.  The  mere  fact,  therefore,  that  the  amount  of 
the  loss,  as  found  by  the  jury,  was  less  than  the  amount 
claimed  to  have  been  lost  by  assured  in  his  preliminary 
proofs,  does  not  sustain  a  charge  of  "false  swearing. 
Franklin  Ins.  Co.  v.  Culver,  6  Ind.  137.     1865. 

§  10.  In  the  sixth  plea,  the  defendants  set  up  as  a  de- 
fense, that  after  the  fire,  the  plaintiff,  in  making  his  claim, 
had  misrepresented  and  over-stated  the  amount  of  his  loss, 
contrary  to  the  form  and  effect  of  the  condition  in  the 
policy.  Held^  that  to  sustain  this  plea,  it  was  necessaiy 
to  prove  that  the  over-estimate  did  not  arise  from  mistake 
or  madvertence,  but  was  made  designedly,  for  the  purpose 
of  obtaining  a  larger  sum  than  the  loss  really  sustained, 
or  to  prevent  close  inquiry.  Held^  also,  that  upon  the 
evidence  set  out  below — ^it  being  probable  that  the  loss, 
though  over-estimated,  was  equal  to  the  sum  insured,  and 
there  being  circumstances  which  might  explain  the  over- 
charge— the  jury  were  warranted  in  finding  for  the  plaint- 


802 


FALSE  SWEAEING. 


;!• 


iff.   Pdrk  V.  Phoenix  Ins.  Co.  19  Upper  Canada,  Q.  B.  110. 
1859. 

§  11.  To  create  a  forfeiture  under  a  clause  in  a  policy 
declaring  that  <4ll  false  swearing  or  fraud  shall  cause  a  for- 
feiture of  all  claims  against  the  insurers,  the  false  swearing 
must  be  done  wilfully  and  knowingly  with  a  view  to  de- 
fraud the  company.  Franklin  Fire  Ins.  Co.  v.  Updegraff, 
43  Penn.  St.  350.     1862. 

§  12.  "Where  a  policy  provides  that  the  insured  in 
case  of  loss  shall  deliver  to  the  insurer  a  particular  state- 
ment of  such  loss,  verified  by  his  aflSdavit,  and  that  any 
fraud  or  false  swearing  in  respect  thereto  should  forfeit  all 
claim  under  the  policy,  a  false  statement,  to  operate  as  a 
forfeiture,  must  be  wilfully  made  with  respect  to  a  material 
matter,  and  with  the  intent  to  deceive  the  insurer. 
Marion  v.  Great  Kepublic  Ins.  Co.  35  Mo.  148.     1864. 

§  13.  Over-valuation  in  a  claim  for  loss  by  mistake 
or  inadvertence  does  not  avoid  the  insurance ;  contra,  if 
knowingly  done  and  with  fraudulent  intent.  Hickman 
V.  Long  Island  Ins.  Co.  1  Edmonds'  Sel.  Cas.  N.  Y.  374. 
1847. 

§  14.  A  condition  that  if  the  affidavit  required  in 
case  of  loss  should  contain  "  any  untrue  statement,  the 
policy  should  be  void."  Held,  as  the  affidavit  was  re- 
quired only  to  verify  the  account  of  loss,  untrue  statements 
in  it  as  to  title  would  not  avoid  the  policy.  Here  the 
plaintiff,  while  owning  the  building,  did  not  own  the  land; 
his  statement  was  therefore  true,  unless  the  building  were 
attached  to  the  realty.  Ross  v.  Commercial  Union  Ass. 
Co.  of  London,  26  U.  C.  Q.  B.  552.     1867. 

§  15.  Plaintiff  describing  himself  as  absolute  owner 
at  the  time  of  the  fire,  when  he  and  his  wife  were  owners 
together,  has  not  been  guilty  of  false  swearing ;  by  which 
is  meant  wilful  and  fraudulent,  not  merely  incorrect,  de- 
scriptions. (Reversing  s.  c.  in  U.  C.  C.  P.  493.  1866.) 
(Wilson,  J.,  dissenting).  Mason  v.  Agric.  Mut.  Ass.  of  Can. 
18  U.  C.  C.  P.  19.     1868. 

§  16.    The  assured  not  being  bound,  in  case  of  loss, 


FALSE  SWEARING. 


303 


to  notify  the  insurers  of  the  time  and  nature  of  the  risk, 
these  being  known  to  them,  any  misrecital  in  these  respects 
in  his  notice  may  he  rejected  as  surplusage.  Walker  v. 
Metropolitan  Ins.  Co.  56  Me.  371.     1868. 

§  17.  A  discrepancy  between  the  plaintiff's  estimate 
and  his  actual  loss,  which  can  be  reasonably  accounted  for 
as  opinion,  is  entitled  to  no  weight  on  the  question  of  false 
swearing.  The  discrepancy  must  show  a  material  and  in- 
tentional over-valuation.  (Sprague,  J.,  dissenting  as  to 
the  over-valuation  being  material — that  whether  material 
or  not  in  amount  makes  no  difference,  it  may  still  be 
false  sw^earing.)  Clark  v.  Phoenix  Ins.  Co.  36  Cal.  168. 
1868. 

§18.  The  policy,  after  describing  what  preliminary 
proofs  are  required,  adds:  "All  frauds  or  attempts  at 
fraud,  by  false  swearing  or  otherwise,  shall  cause  a  forfeit- 
ure of  all  claim  on  this  company."  Held^  wilful  and  in- 
tentional fraud,  or  corruptly  swearing  to  a  false  statement 
as  to  a  material  matter,  either  in  the  application  or  in  the 
preliminary  proofs,  forfeits  the  recovery.  Such  fraud 
must,  of  course,  be  proved  affirmatively  by  the  company. 
The  fraud  or  false  swearing  must  be  actual  and  intentional, 
and  does  not  include  an  over-estimate  of  the  amount  of  loss  ' 
honestly  made.  Phoenix  Ins.  Co.  v.  Munday,  5  Cold.  547. 
1868. 

§  19.  "  Any  false  swearing  by  the  assured  shall  cause 
a  forfeiture  of  all  claim  for  damages  "  In  the  preliminary 
oath,  the  assured  affirmed  that  his  title  was  exclusive,  un- 
encumbered, auvt  no  other  person  had  any  interest  therein. 
His  wifo  had  a  dower  interest  in  it  as  widow  of  a  former 
owner,  and  there  was  a  lien  for  the  whole  price  of  the 
premises.  Held^  no  recovery  could  be  had.  Security  Ins. 
Co.  V.  Bronger,  6  Bush,  146.     1869. 

§  20.  In  case  of  "fraud  in  the  claim  for  loss,  or  false 
declaring  or  affirming,  the  claimant  shall  forfeit  all  benefit 
under  this  policy."  Whether  there  was  such  fraud  is  for 
the  jury  to  decide ;  if  so,  they  must  find  for  the  company, 
but  an  excess  in  value  caused  by  mere  error  of  judgment, 
and  with  no  intent  to  deceive,  is  not,  in  legal  contempla- 


1:1 


\  i 


'.  ,i^  ii 


'    '1: 


,•<• 


TP- 


■ 


304 


FALSE  SWEABCrO. 


tion,  "  false."    Gerhauser  v.  North  British  &  Mercantile 
Ins.  Co.  6  Nevada,  15.     1870. 

§  21.  False  statements  relative  to  terms  of  settlement 
with  other  companies,  made  with  intent  to  deceive,  are 
material,  and  defeat  the  ri^ht  to  recover.  If  the  assured, 
with  intent  to  deceive,  exhibit  books  with  false  entries  of 
a  material  nature,  it  is  fraud  causing  a  forfeiture  of  all 
claim,  under  the  clause  against  fraud  and  false  swearing. 
Weide  v.  Germania  Ins.  Co.  1  Dillon  C.  C.  441.     1870. 

§  22.  Whether  the  difference  between  the  value  as 
stated  in  the  application,  and  as  found  by  the  referee,  shows 
such  a  gross  over-valuation  as  to  avoid  a  policy,  is  a  ques- 
tion of  fact  for  the  referee.  Dohn  v.  Farmers'  Joint  Stock 
Ins.  Co.  5  Lansing,  275.     1871. 

§  23.  "  All  fraud  and  false  swearing  shall  cause  a  for- 
feiture of  all  claims  *  *  "  Jleldy  a  discrepancy  be- 
tween the  value  of  goods  destroyed,  as  sworn  to  by 
assured,  and  as  proven  on  the  trial,  is  not  necessarily  evi- 
dence of  fraud  and  false  swearing.  Beck  v.  Germania 
Ins.  Co.  23  La.  An.  510.     1871. 

§  24.  False  statements,  which,  by  the  policy,  are  to 
forfeit  all  claims  for  loss,  must  be  wilfully  made  with  re- 
spect to  a  material  matter,  with  intent  to  deceive  the 
insurer.  That  the  verdict  is  only  one-half  or  one-third  the 
valuation  in  the  statement  of  loss  does  not  evidence  fraud 
in  such  statement  so  as  to  set  aside  the  verdict.  Gerhauser 
V.  North  British  &  Merc.  Ins.  Co.  7  Nevada,  174.    1871. 

§  25.  The  false  swearing  referred  to  means  only 
fraudulent  false  swearing  in  furnishing  preliminary  proofs 
or  in  the  examination  under  oath  stipulated  for.  Discrep- 
ancies between  the  preliminary  proofs  and  the  plaintiff's 
testimony  on  trial,  does  not  justify  a  court  in  assuming 
the  former  to  be  false.  It  may  have  been  the  last  testi- 
mony which  was  not  true,  it  may  have  been  mistake,  &c., 
it  is  a  question  for  the  jury.  Ins.  Cos.  v.  Weides,  14  Wall 
375.     1871. 

See  Ezaminatioa  under  Oath,  §  4. 


m 


FLOATING  POLICY. 

§  1.  "  Twenty  thousand  dollors  on  cotton  that  might 
be  stored  in  seven  different  places."  Cotton  to  the  amount 
of  $  1 7,000  was  burned  at  one  place,  and,  at  the  same  time, 
cotton,  belonging  to  assured  was  stored  in  other  places, 
making  in  all  more  than  $20,000.  Held,  that  assured  was 
entitled  to  recover  the  full  sum  lost,  and  not  an  average 
sum,  proportioned  to  the  sura  insured  as  compared  with 
the  whole  property  at  risk.  Nicolet  v.  Insurance  Co.  3 
La.  371.     1831. 

§  2.  Insurance  was  effected  on  plaintiff's  house, 
$1,200;  furniture  therein,  $250;  on  his  barns,  $250;  on 
his  barn  and  shed  on  the  meadow,  $250 ;  and  on  his  hay 
and  grain  therein,  $400.  Hay  and  grain  in  the  barn  on 
the  meadow  was  consumed  by  fire  to  an  amouLt  exceeding 
$400.  Held,  that  plaintiff  was  entitled  to  recover  to  the 
amount  of  $400 ;  no  matter  whether  the  policy  be  con- 
structed to  cover  hay  and  grain  in  all  the  buildings,  or 
only  the  hay  and  grain  in,  the  barn  on  the  meadow.  Sup- 
posing the  insurance  to  cover  the  hay  and  grain  in  all  the 
buildings,  there  is  no.  principle  of  construction  by  which 
the  sum  insured  on  all  the  hay  and  grain  can  be  appor- 
tioned to  the  different  parcels,  so  that  no  greater  sum  can 
be  recovered  for  the  loss  in  this  case,  than  a  sum  that  shall 
bear  the  same  ratio  to  $400,  as  the  value  of  the  hay  and 
grain  in  the  barn  on  \\\ii  meadow  bears  to  the  value  of  all 
the  hay  and  grain  in  all  the  buildings  named.  Rix  v. 
Mutual  Ins.  Co.  20  N.  H.  198.     1849. 


■  .., 


FOREIGN   INSURANCE   COMPANIES. 

§  1.  The  fact  that  an  agency  fails  to  file  a  statement, 
as  required  by  an  act,  in  Missouri,  to  license  and  regulate 
agencies  of  foreign  insurance  companies,  does  not  avoid 
promises  made  to  the  company  to  pay  the  premium  on  in- 
surance. Clark  V.  Middleton,  19  Mo.  53.  1853. 
20 


306 


FOREIGN    INSURANCE    COMPANIES. 


§  2.  The  failure  of  an  agency  of  a  foreign  insurance 
company  to  take  out  a  license,  or  to  furnish  the  clerk  of 
the  county  court  with  certain  documents,  as  required  by 
law,  does  not  make  the  policy  void,  nor  disable  the  com- 
pany to  maintain  or  defend  an  action.  Columbus  Ins.  Co. 
V.Walsh,  18  Mo.  229.     1853. 

§  3.  The  law  of  Illinois  requiring  certain  things  to 
be  done  by  agents  of  foreign  insurance  companies,  and  a 
percentage  of  tax  to  be  paid  to  the  clerk,  is  a  burden  upon 
agents  for  the  right  of  exercising  a  franchise  or  privilege- 
not  a  tax  upon  property — and  is  not  an  infringement  upon 
any  of  the  provisions  of  the  Constitution.  The  People  v. 
Thurber,  13  111.  554.     1852. 

§  4.  Laws  of  Ohio  requiring  that  the  agent  of  foreign 
insurance  companies,  making  contracts  of  insurance  in  that 
State,  should  also  be  agent  to  receive  notice  of  suits,  are 
valid  and  reasonable ;  and  a  judgment,  obtained  after  serv- 
ice upon  the  agent,  is  entitled  to  full  respect  in  other 
States,  as  a  judgment  against  the  company.  Lafayette 
Ins.  Co.  V.  French,  18  How.  U.  S.  404.  1855.  Affirming 
5  McLean,  C.  C.  U.  S.  461.     1853. 

§  5.  By  the  3d  section  of  the  act  of  March  21,  1849, 
in  Pennsylvania,  it  is  provided,  that  *'  in  the  commence- 
ment of  any  suit  or  action  against  a  foreign  insurance  cor- 
poration, process  may  be  served  upon  any  officer,  agent,  or 
engineer  of  such  corporation,  either  personally  or  by  copy, 
or  by  leaving  a  certified  copy  at  the  office,  depot,  or  usual 
place  of  business  of  said  corporation ;  and  such  service 
shall  be  good  and  valid  in  law,  to  all  intents  and  pur- 
poses." In  an  action  against  a  foreign  insurance  com- 
pany the  sheriff's  return  to  the  writ  was  as  follows: 
"Aug.  2,  1852.  Served  a  true  and  attested  copy  of  the 
within  writ  personally  on  Alfred  Edwards,  an  agent  of 
the  within  named  defendants,  and  made  known  to  him 
the  contents  thereof."  A  rule  was  taken  to  set  aside  the 
service  of  the  writ,  and  depositions  taken  under  it  show- 
ing that  Mr.  Edwards  had  never  taken  out  a  license  as 
agent,  had  never  acted  as  defendant's  agent  in  Phila- 
delphia, and  had  no  place  of  business  in  that  place, 
though  it  was  admitted  that  he  was  director  of  the  de- 


FOREIGN    INSURANCE     COMPANIES. 


307 


fendant  company,  and  their  agent  in  "New  York;  Held, 
that  the  parties  were  concluded  by  the  sheriff's  return, 
and  the  rule  was  discharged.  Patton  v.  Insurance  Co.  1 
Philadelphia,  Pa.  396.     1852. 

§  6.  The  provisions  of  Revised  Statutes,  Chapter  37, 
Section  42,  as  modified  by  Statutes  of  1847,  Chapter  273, 
Section  2,  of  Massachusetts,  in  regard  to  foreign  insurance 
companies,  do  not  apply  to  insurance  companies,  organized 
and  doing  business  on  the  mutual  principle.  Williams  v. 
Cheney,  3  Gray,  Mass.  215.     1855. 

§  7.  It  is,  in  Massachusetts,  essential  to  the  validity 
of  a  contract  of  insurance  with  a  foreign  company,  that 
the  company  should  have  previously  complied  with  the 
provisions  of  the  statutes  relating  to  such  companies ;  and 
no  action  can  be  maintained  by  such  companies  on  a  pre- 
mium note  without  proof  of  such  compliance.  Jones  v. 
Smith,  3  Gray,  Mass.  500.     1855. 

§  8.  In  f*^  action  on  insurance  policies,  issued  in 
Upper  Canada,  service  in  Montreal,  at  the  defendants' 
agency  there,  of  process  against  an  insurance  company  in- 
corporated and  having  its  chief  place  of  business  in  Upper 
Canada  is  not  sufficient ;  the  agent,  on  whom  process  w,as 
served,  not  having  charge  of  an  office  belonging  to  the 
company  for  the  transaction  of  its  business  generally,  and 
without  limitation.  McPherson  v.  St.  Lawrence  Ins.  Co. 
5  Lower  Canada,  S.  C  Montreal,  403.     1855. 

§  9.  A  foreign  insurance  company,  doing  business  in 
New  Orleans  through  an  agent,  cannot  be  permitted  to 
frustrate  a  claim  in  Louisiana  upon  a  contract  made  with 
it,  by  revoking  the  power  of  its  agent  on  the  eve  of  the 
institution  of  a  suit,  for  a  loss  of  which  it  has  been  noti- 
fied. Michael  v.  Mutual  Ins.  Co.  of  Nashville,  10  La.  An. 
737.     1855. 

§  10.  Under  Chapter  453,  Statutes  of  1854,  of  Mas- 
sachusetts, contracts  with  foreign  insurance  companies  are 
valid,  though  there  has  been  no  compliance  with  the  re- 
quirements of  Revised  Statutes,  Chapter  37,  and  Statutes 
1847,  Chapter  273.  Williams  v.  Cheney,  3  Gray,  Mass. 
215.     1855. 


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FOREIGN"    INSURANCE    COMPANIES. 


§  11.  Provision  in  charter  of  foreign  mutual  insur- 
ance company,  that  on  failure  to  pay  assessments  the  whole 
note  may  be  collected,  to  be  returned  at  expiration  of 
policy,  after  deducting  losses  and  expenses,  not  a  penal 
statute  and  may  be  enforced.  Jones  v.  Sisson,  6  Gray, 
Mass.  288.     1856. 

§  12.  Insurance  companies  incoporated  in  one  State, 
are  legally  competent  to  negotiate  and  enter  into  contracts 
in  other  States.  Kennebec  County  v.  Augusta  Ins.  & 
Banking  Co.  6  Gray,  Mass.  204.     1856. 

§  13.  The  statement  proved  in  this  case  was  held  a 
sufficient  compliance  with  Statutes  of  Massachusetts,  1847, 
Chapter  273,  Section  3.  Atlantic  Mut.  Fire  Ins.  Co.  v. 
Conklin,  6  Gray,  Mass.  73.     1856. 

§  14.  A  statement  from  a  foreign  mutual  insurance 
company  setting  forth  the  whole  amount  of  risks  insured ; 
the  whole  amount  of  premium  thereon ;  the  portion  there- 
of paid  in  cash ;  the  largest  sum  insured  on  any  one  risk ; 
and  the  security  taken  for  premiums  not  paid  in  cash, 
beine  the  lien  created  by  section  7  of  the  act  incorporating 
the  ;^aintiffs,  is  a  full  compliance  with  the  requirements  of 
the  Ke vised  Statutes,  Chapter  37,  Section  42,  of  Massachu- 
setts. The  provision  of  such  statutes  p**ohibiting  foreign 
insurance  companies  from  issuing,  in  any  one  risk,  to  an 
amount  greater  than  one-tenth  of  their  capital,  is  not  appli- 
cable to  mutual  insurance  companies.  Atlantic  Mut.  Fire 
Ins.  Co.  V.  Conklin,  6  Gray,  Mass.  73.     1856. 

§  15.  Statement  in  compliance  with  the  law,  filed 
prior  to  contract  with  defendant,  is  at  least  sufficient  for 
him.  Atlantic  Mut.  Fire  Ins.  Co.  v.  Conklin,  6  Gray, 
Mass.  73.     1856. 

§  16.  Omission  of  agent  to  file  and  publish  statement 
as  required  by  Revised  Statutes,  Chapter  37,  Section  41, 
and  Statute  1847,  Chapter  273,  in  Massachusetts,  will 
defeat  an  action  on  deposit  note.  There  must  be  a  com- 
pliance before  there  can  be  a  valid  contract  of  insurance. 
W  ashington  County  Mut.  Ins.  Co.  v.  Dawes,  6  Gray,  Mass. 
576.     1856. 

§  17.    If  a  premium  note  to  .a  foreign  insurance  com- 


FOREIGN    msUBANCE    COMPANIES. 


309 


pany,  which  is  void  for  non-compliance  with  the  statutes^ 
of  Massachusetts,  be  assigned  to  a  party  who  has  knowl- 
edge that  it  was  taken  for  premium  on  a  policy  by  an 
agent  in  that  State,  the  endorsee  is  entitled  to  recover, 
unless  he  knew,  or  had  reasonable  cause  to  know,  that  the 
note  was  given  in  violation  of  the  statute ;  and  whether 
there  was  such  knowledge  or  reasonable  cause,  is  a 
question  for  the  jury.  AVilliams  v.  Cheney,  8  Gray,  Mass. 
206.     1857. 

§  18.  A  contract  of  insurance  made  with  an  agency 
of  a  foreign  insurance  company  that  has  not  complied  with 
the  statute  of  Massachusetts  in  regard  to  filing  certain 
statements,  and  the  premium  note,  are  void,  though  the 
contract  be  with  one  who  had  himself  no  interest  in  the 
property  insured,  and  who  acted  merely  as  agent  of  the 
owner  in  another  State,  and  the  policy  was  expressed  to 
be  "for  the  benefit  of  whom  it  may  concern."  Williama 
V.  Cheney,  8  Gray,  Mass.  206.     1857. 

§  19.  An  insurance  company  of  another  State  may 
lawfully  send  a  surveyor  to  receive  applications  for  insur- 
ance in  the  State  of  Pennsylvania ;  and  a  premium  note, 
made  and  delivered  to  such  surveyor,  is  valid,  and  may  be 
enforced  against  the  maker.  The  remedy  on  such  note,  if 
sijed  upon  in  Pennsylvania,  is  governed  by  Pennsylvania 
laws,  and  not  by  those  of  the  State  where  the  company  is 
located.  That  suit  was  brought  on  the  premium  notes 
without  the  notice  inquired  by  the  charter  having  been 
first  given  to  the  maker,  can  only  be  pleaded  in  abatement. 
Thornton  v.  Western  Reserve  Farmers'  Ins.  Co.  31  Penn. 
St.  529.  1858.  See  also  same  case  iu  1  Grant,  Pa.  472^ 
1858. 

§  20.  The  Revised  Statutes,  Chapter  37,  Section  40v 
of  Massachusetts,  held  to  apply  to  foreign  mutual  insure 
ance  companies ;  and  action  on  premium  note  could  not  be 
maintained  unless  they  had  complied.  General  Mat.  Ins. 
Co.  V.  Phillips,  13  Gray,  Mass.  90.     1859. 

§  21.  The  legislature  has  th(3  right  to  provide,  that 
foreign  insurance  companies  may  ])e  burthened  for  the 
benefit  of  the  Chicago  Benevolent  Firemen's  Association ; 
and  that  the  revenue  resulting  from  such  burthens,  neecl 


m 


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310 


FOREIGN    INSURANCE    COMPANIES. 


not  be  paid  into  the  State  Treasury.   Firemen's  Benevolent 
Association  v.  Lounsberry,  21  111.  511.     1859. 

§  22.  The  facts,  that  the  president  of  a  foreign  insur- 
ance company  was  at  the  office  of  the  agent  in  Boston, 
soliciting  business ;  that  the  defendants  were  invited  by 
the  agent  to  go  there  and  meet  him ;  that  the  application 
for  insurance  was  made  by  the  defendants  to  tlie  agent, 
and  that  lie  suggested  the  company  with  which  it  should 
be  effected  ;  that  he  had  the  sign  bearing  the  name  of  the 
company  put  up  in  his  office ;  that  he  informed  the  appli- 
cants what  the  rates  of  insurance  would  be ;  that  he  re- 
ceived and  forwarded  applications,  and  received  and  re- 
turned policies ;  that  he  was  paid  for  all  his  services  by 
the  company ;  and  that  the  notes  for  the  premium  were 
sent  to  him  in  blank,  and  filled  up  and  executed  in  his 
office,  when  the  policies  were  delivered,  will  authorize  a 
jury  to  infer  that  he  is  not  a  mere  agent  to  receive  and 
forward  papers,  but  was  an  agent  to  solicit,  procure,  and 
transact  business  for  the  company,  within  the  provisions  of 
Statutes  of  Massachusetts,  1856,  chapter  252.  Roche  v. 
Ladd,  1  Allen,  Mass.  436.     1861. 

§  23.  A  foreign  insurance  company,  that  has  not  com- 
plied with  the  statute  of  the  State,  in  reference  to  things 
to  be  done  by  such  companies,  before  they  can  transact 
the  business  of  insurance  in  such  State,  cannot  maintain 
an  action  on  a  note  given  for  insurance,  ^tna  Ins.  Co.  v. 
Harvey,  11  Wis.  394.    1860. 

§  24.  The  statutes  of  Massachusetts  required  the  agents 
of  foreign  insurance  companies  to  file  with  the  treasurer 
and  to  publish  a  certain  statement.  A  foreign  company 
was  defeated  in  an  action  for  assessments  on  the  premium 
note,  1st,  because  of  variance  between  the  statement  as 
filed  with  the  treasurer  and  as  published ;  2d,  because  it 
was  not  signed  and  sworn  to  as  required  by  the  statute, 
and  did*  not  state  the  whole  amount  insured  by  the  com- 
pany. Washington  County  Mut.  Ins.  Co.  v.  Hastings,  2 
Allen,  Mass.  303.     1861. 

§  25.  Pennsylvania  act  of  May  7,  1857,  requiring  the 
agencies  of  foreign  insurance  companies  in  Philadelphia 


FOREIGN    INSURANCE    COMPANIES. 


311 


to  pay  a  percentage  of  their  receipts  to  an  association  for 
the  relief  of  disabled  firemen,  deemed  of  such  doubtftil 
constitutional  validity  and  so  extraordinary  in  its  terms, 
that  the  court  declined  to  enforce  bonds  given  for  the  pay- 
ment of  such  percentage — See,  Philadelphia  Association, 
<fec.  V.  Wood,  39  Penn.  St.  73.     1861. 

§  26.  A  contract  of  insurance  made  with  a  party  resi- 
dent in  New  Hampshire,  and  upon  property  situated  in 
that  State,  by  a  Massachusetts  mutual  insurance  company, 
which  had  not  complied,  in  New  Hampshire,  with  the  od- 
ligations  and  requirements  imposed  by  the  laws  of  Massa- 
chusetts upon  the  like  corporations  chartered  by  the  laws 
of  New  Hampshire  and  acting  in  that  btate,  is  invalid 
under  the  statutes  of  New  Hampshire.  Haverhill  Ins.  Co. 
V.  Prescott,  42  N.  H.  547.     1861. 

§  27.  The  legislature  of  Wisconsin  has  power  to  per- 
mit or  to  prohibit  the  doing  of  ])usiness  in  that  State,  by 
foreign  insurance  companies ;  and  may  couple  a  permit  to 
do  business  there  with  such  conditions  and  restrictions  as 
it  sees  fit  to  impose.  Fire  Department  of  Milwaukee  v. 
Helfenstein,  16  Wis.  137.     1862. 

§  28.  A  policy  of  insurance  negotiated  in  Indiana  by 
a  foreign  insurance  company  or  its  agent,  without  a  preyi- 
ous  compliance  with  the  act  of  the  legislature  of  that  State 
of  June  17,  1852,  is  void.  Rising  Sun  Ins.  Co.  v.  Slaugh- 
ter, 20  Ind.  520.     1863. 

§  29.  An  insurance  company  doing  business  in  New 
York  under  and  in  compliance  with  its  laws,  though 
created  by  the  laws  of  another  State,  and  having  its  prin- 
cipal place  of  business  in  another  State,  on  being  sued  by 
a  citizen  of  New  York  in  a  court  of  that  State,  cannot  re- 
move the  cause  into  the  Circuit  Court  of  the  United  States 
on  the  ground  that  it  is  a  citizen  of  another  State.  Stevens 
V.  Phoenix  Ins.  Co.  24  How.  N.  Y.  517.     1863. 

§  30.  In  a  complaint  on  a  fire  policy  issued  by  a  for- 
eign insurance  company,  it  is  not  necessary  to  allege  that 
the  defendant  had  complied  with  the  statute  (of  Wiscon- 
sin) requiring  such  companies  to  file  certain  statements 
under  oath  with  the  secretary  of  state,  and  obtain  his  cer- 


312 


FOREIGN    INSUEANCE    COMPANIES. 


I    I 


tificate  of  authority  to  transact  business  before  issuing  any 
policies.    Fitzsimmons  v.  City  Fire  Ins.  Co.  18  Wis.  234. 

1864. 

§  31.  A  foreign  mutual  insurance  company  which  has 
issued  a  policy  to  a  citizen  of  Massachusetts,  and  laid  an 
assessment  thereon,  without  first  appointing  a  general 
agent  there  under  the  laws  of  that  State,  may,  upon  sub- 
sequently appointing  such  agent,  maintain  an  action  to  re- 
cover the  assessm  3nt.  National  Mut.  Fire  Ins.  Co.  v.  Pursell^ 
10  Allen,  Mass.  231.     1865. 

§  32.  Suit  by  a  foreign  mutual  insurance  company  to 
recover  assessment  on  deposit  note,  defendant  denies  that 
the  company  complied  with  the  statute  in  depositing  with 
the  State  treasury  a  copy  of  its  charter.  Held,  the  com- 
pany must  prove  the  fact ;  and  a  certificate  of  the  treasurer, 
which  does  not  show  the  deposit  to  have  been  made  before 
the  making  of  the  note  sued  on,  is  no  proof.  Washington 
Mut.  Ins.  Co.  V.  Chamberlain,  16  Gray,  165.     1860. 

§  33.  Plaintiffs  brought  suit  in  the  Superior  Court  of 
Connecticut  on  a  policy  of  reinsurance,  which  was  reserved 
to  the  Court  of  Errors.  Pending  this  case,  the  plaintiffs 
filed  a  bill  in  chancery  in  the  same  court  to  reform  the 
policy.  This  second  suit  was  removed  by  defendants  into 
this  court,  the  State  court  refusing  to  allow  it,  as  not  be- 
ing an  original  suit  within  §  12,  1  XJ.  S.  Stat,  at  Large,  70, 
Act  of  Sept.  24,  1780.  Held,  that  it  is  an  original  suit, 
ft  might  have  been  brought  before  the  suit  at  law,  and, 
therefore,  it  is  not  ancillary.  Charter  Oak  F.  Ins.  Co.  v. 
Star  Ins.  Co.  6  Blatchford  C.  C.  208.     1868. 

§  34.  An  insurance  company  is  not  a  citizen  within  the 
meaning  of  the  Constitution  of  the  U.  S.,  that  "  citizens 
of  each  State  shall  be  entitled  to  all  the  privileges,  cfec, 
of  citizens  of  the  several  States,"  being  a  mere  creature 
of  local  law,  and  its  j^rivileges  special  privileges. 

Nor  is  a  policy  a  transaction  of  commerce,  within  the 
meaning  of  the  clause  declaring  that  "  Congress  shall  have 
power  to  regulate  commerce  between  the  States."  There- 
fore, a  State  statute  requiring  foreign  insurance  companies 
before  doing  business  there,  to  deposit  bonds  of  a  certain 


FOBEIGN  INSURANCE  COMPANIES. 


313 


amount  with  the  treasury  of  the  State,  and  to  procure  a 
license,  does  not  conflict  with  those  constitutional  pro- 
visions.    Paul  V.  Virginia,  8  Wallace,  168.     1868. 

§  35.  An  insurance  company  organized  under  the 
laws  of  one  State,  having  its  principal  office  therein,  but 
doing  business  in  another  State,  under  its  statutes,  is  a 
citizen  of  the  State  creating  it,  within  the  meaning  of  the 
Judiciary  Act  of  1789,  and  as  such  is  entitled  to  a  removal 
of  the  cause  to  the  United  States  court ;  and,  after  appli- 
cation for  removal,  the  State  court  has  no  jurisdiction,  al- 
though the  defendant  answers  therein.  Stevens  v.  Phcenix 
Ins.  tJo.  2  Hand.  149.     1869. 

§  36.  A  foreign  insurance  company,  although  it  has 
complied  with  all  the  State  statutes  as  to  doing  business 
therein,  has  the  right  of  removal  to  the  Federal  courts  of 
a  suit  against  it  by  a  citizen  of  the  State ;  and  its  members 
are  presumed  for  this  purpose  to  be  citizens  of  the  P.tate 
creating  it.  Hobbs  v.  Manhattan  Ins.  Co.  56  Me.  417. 
1869. 

§  37.  A  foreign  insurance  company  doing  business  in 
this  State,  under  the  laws  for  such  companies  has  the 
right  to  transfer  causes  to  the  Federal  courts.  (Of  the 
three  judges,  one  dissents,  and  a  second  doubts,  but  con*- 
curs).  Knorr  v.  Home  Ins.  Co.  of  N.  Y.  25  Wis.  143. 
1869. 

§  38.  When  a  coinpany  has  an  agent  in  another  State 
upon  whom  summons  can  be  served,  and  the  laws  of  that 
State  require  the  company  to  keep  such  agent  therein,  its 
revocation  of  such  agency  is  inoperative  to  defeat  the  effect 
of  a  service  of  summons,  there  being  no  other  agent  in  the 
State.  Semmes  v.  City  F.  Ins.  Co.  of  Hartford,  36  Conn. 
543.     1869. 

§  39.  A  statute  providing  the  conditions  on  w^hich 
foreign  insurance  companies  shall  do  business  in  Michigan, 
provides  that  the  State  courts  have  exclusive  jurisdiction 
of  suits  arising  under  the  act.  Ileld^  siibmission  to  the 
act  is  a  waiver  of  all  ris^hts  as  quasi  citizens  of  another 
State  to  remove  to  the  Federal  courts  causes  accruing  in 
the  State.  Glenn's  Falls  Ins.  Co.  v.  Judge  of  Jackson 
County,  21  Mich.  577.     1870. 


Ui't 


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314 


FOREIGN  INSURANCE  COMPANIES. 


I 


§  40.  A  suit  in  a  State  court  by  a  citizen  of  another 
State,  against  an  insurance  company  also  of  another  State, 
doing  business  under  the  laws  of  the  State  where  the  suit 
was  commenced,  cannot  be  removed  into  the  Federal 
courts,  neither  ^)arty  being  citizens  of  the  State  in  whose 
court  the  suit  lies.  Insurance  Co.  v.  Francis,  11  Wallace, 
210.     1870. 

§  41.  Insurance  by  a  corporation  of  one  State  doing 
business  in  another  State,  not  being  commerce  between 
the  States,  nor  a  corporation  being  such  a  citizen  of  one 
State  as  to  be  entitled  by  the  Constitution  to  all  the  priv- 
ileges and  immunities  of  citizens  of  the  several  States,  an 
insurance  company  of  one  State,  though  not  called  a  cor- 
poration by  that  State,  yet  bearing  all  the  attributes  of  a 
coi'poration,  can  only  exercise  its  franchise  in  another 
State  by  the  comity  of  the  latter,  and  may  be  taxed  by 
the  other  State  for  the  privilege  of  conducting  its  })usiness 
therein.  Liverpool  tfc  London  Ins.  Co.  v.  Massachusetts, 
10  Wallace,  560.     1870. 

§  42.  In  a  declaration  against  a  foreign  insurance 
company,  it  should  appear  affirmatively  that  the  defend- 
ant is  a  foreign  insurance  company,  and  that  such  a  person 
is  its  duly  authorized  agent.  Witliout  such  allegations  a 
sheriff's  return  of  "  executed  on  B.  «fe  S.  agents  person- 
ally, Oct.  30,  1867,"  will  not  authorize  a  judgment  by 
default.  Continental  Ins.  Co.  v.  Mansfield,  45  Missouri, 
511.     1871. 

§  43.  Conditions  in  the  charter  of  a  foreign  insurance 
company  are  not  binding  upon  the  assured,  being  a  for- 
eign law,  unless  he  has  notice  of  them ;  and  a  plea  setting 
up  a  breach  of  such  conditions  is  therefore  demurrable. 
City  F.  Ins.  Co.  of  Hartford  v.  Carrugi,  41  Ga.  660. 
1871. 

§  44.  To  entitle  a  foreign  defendant  to  remove  the 
cause  to  the  Federal  courts,  it  must  show  the  plaintiff  to 
be  a  citizen  of  this  State  at  the  commencement  of  the  ac- 
tion. An  averment  that  the  plaintiff'  is  a  citizen  of  said 
State  is  insufficient,  for  the  plaintiff'  might  have  removed 
between  the  date  of  the  petition  and  the  commencement 


FRAUD. 


315 


of  the  action.  Nor  is  it  sufficient  to  allege  that  he  is  a 
resident  of  the  State,  he  must  be  a  citizen.  Pechner  v. 
Phcenix  Ins.  Co.  6  Lansing,  411.     1872. 

See  Agent,  §  72.  Bonds  of  Apents,  3.  Evidence,  41,  43.  Executions,!, 
Gornisbraent  or  Trustee  Process,  0.  Lien,  7.  Place  of  Making  Coutriict,  1, 
4,    Taxation,  7, 13. 


FRAUD. 

§  1.  Case  entertained  in  equity  to  compel  the  deliver- 
ing up  of  a  policy  obtained  by  fraud,  and  where  fraudu- 
lent loss  was  charged,  although  an  action  at  law  was 
pending  on  the  policy.  French  v.  Conelley,  2  Anstruther, 
454.  1794.  See  also  Duncan  v.  Worrall,  10  Price,  31. 
(Exch.) 

§  2.     Declaration  set  forth  several  rules  and  regula- 
tions of  the  company,  and  alleged  that  the  secretary  had 
fraudulently  represented  tliat  they  had  been  complied 
with,  knowing  the  fact  to  be  otherwise,  and  thereby  in- 
duced plaintiff  to  take  a  policy  in  the  company.     Plea 
that  the  rules  and  regulations  had  been  so  fully  complied  ' 
with,  as  was  necessary  to  protect  the  insurances.     Plea 
held  bad;    and  Held^  that   an   action   lay,  although  no 
special   damage   was    averred    beyond   the   payment   of 
premiums,      rontifex  t.  Bignold,  3  Man.  &  Grang.  63 . 
(42  E.  C.  L.  42.)     1841. 

§  3.  A  policy  issued  in  class  4,  of  this  company,  was 
numbered  50,  and  it  appeared  that  no  policy  had  been 
issued  in  that  class  bearing  a  lots^er  number.  Held^  that 
this  numbering  was  not  a  fraud  upon  the  defendant,  as 
inducing  him  to  believe  that  there  were  forty-nine  persons 
more  than  there  actually  were,  who  would  share  the  losses 
with  him,  as  the  numbering  may  have  been  entirely  arbi- 
trary. Atlantic  Mut.  Fire  Ins.  Co.  v.  Goodall,  9  Fost.  N. 
H.  182.     1854. 

§  4.  The  fact  of  an  agent  having  innocently  made  a 
misrepresentation  of  facts,  while  effecting  a  contract  for 


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FRAUD. 


Lis  principal,  will  not  amount  to  fraud  upon  the  part  of 
the  latter,  if  the  principal,  though  aware  ot  the  real  state 
of  facts,  was  not  cognizant  of  the  misrepresentation  being 
made,  nor  directed  the  agent  to  make  it.  The  company 
cannot  be  affected  by  any  act  of  the  agent,  not  within  the 
scope  of  his  authority.  Kelly  v.  Troy  Fire  Ins.  Co.  3  "Wis. 
254.     1854. 

§  5.  If  the  parties  have  been  induced  to  enter  into 
contracts  of  insurance,  upon  a  fraudulent  representation 
by  the  agents  and  officers  of  a  company,  in  regard  to  its 
capital  or  pecuniary  resources  and  ability,  or  any  other 
matter  which  rightfully  influenced  them  in  the  negotiation, 
they  may  be  relieved  against  their  contracts.  Jones  v. 
Dana,  24  Barb.  N.  Y.  395.     1857. 

§  6.  When  a  party  has  been  induced  to  enter  into  a 
contract  by  fraud,  he  may,  on  discovering,  the  fraud,  re- 
scind the  ijontract,  and,  by  restoring  the  other  party  to 
the  condition  in  which  he  stood  before  the  contract,  claim 
a  return  of  what  he  has  parted  with,  provided  he  do  so 
at  the  earliest  moment  after  discovering  the  fraud.  In 
this  case  the  defendant  not  having  averred  in  the  answer 
that  he  had  done  this ;  Ileld^  that  the  fact  could  not  be 
proved  on  the  trial.  Devendorf  v.  Beardsley,  23  Barb. 
N.  Y.  656.     1857. 

§  7.  General  averment  that  the  company  is  a  fraudu- 
lent corporation,  without  means  or  ability  to  pay  losses, 
not  sufficient  to  prevent  judgment.  If  fraud  is  the  de- 
fense, it  must  be  shown  in  what  it  consisted.  Sterling  v. 
Mercantile  Mut.  Ins.  Co.  32  Penn.  St.  75.     1858. 

§  8.  It  is  within  the  scope  of  an  agent's  authority  to 
answer  inquiries  concerning  the  condition  and  projierty 
of  the  corporation,  and  its  ability  to  fulfil  its  contracts. 
And  .in  an  action  on  a  premium  note,  by  the  insurance 
company,  the  maker  may  set  up  in  defense,  false  and 
fraudulent  representations  of  the  agent.  And  jn  trial  of 
such  an  issue  the  entire  transactions  of  the  company  may 
be  inquired  into.   Fogg  v.  Griffin,  2  Allen,  Mass.  1.     1861. 

§  9.  An  insurance  company  holding  themselves  out 
as  solvent  are  not  conclusively  bound  to  know  whether 


FRAUD. 


317 


they  are  so  or  not ;  but  if  the  officers  neglect  to  use  due 
care  and  diligence  to  know  the  condition  of  the  company, 
and  hold  it  out  as  solvent,  when  by  use  of  such  care  and 
diligence  they  might  know  it  was  insolvent,  there  would 
be  good  reason  for  holding  them  guilty  of  fraud.  Brown 
V.  Donnell,  49  Me.  421.     1860. 

§  10.  The  directors  of  an  insurance  company  fraudu- 
lently permitting  false  statements  of  the  condition  and 
Fssets  of  the  company  to  be  published  by  its  president 
and  secretary,  thereby  inducing  a  party  to  insure  in  such 
company,  arc  liable  for  any  damage  the  insured  may  suf- 
fer from  the  insolvency  of  the  company.  Salmon  v.  Rich- 
ardson, 30  Conn.  360.     1862. 

§  11.  Where  a  policy  by  its  terms  is  void,  no  action 
can  be  maintained  thereon  upon  the  ground  that  the  in- 
sured was  induced  to  accept  it  by  the  fraud  of  the  in- 
surer. Tibbetts  v.  Hamilton  Mut.  Ins.  Co.  3  Allen,  Mass. 
569.     1862. 

§  12.  Concealment  of  the  existence  of  encumbrances, 
at  the  time  when  the  ratification  of  a  transfer  of  the  policy 
was  procured,  is  such  a  fraud  on  the  company  as  vitiates 
the  policy  in  the  hands  of  the  assignee.  Cumberland, 
Valley  Mut.  Protection  Co.  v.  Mitchell,  48  Penn.  St.  374. 
1864. 

§  13.  An  applicant  for  insurance  who  owned  the 
greater  poiiiion  of  the  machinery  in  a  factory,  and  to  an 
amount  far  exceeding  the  insurance,  and  as  landlord  of  the 
factory  in  which,  together  with  his  own,  there  was  some 
machinery  owned  by  a  third  person  when 'the  policy  was 
granted,  which  before  the  loss  he  had  seized  under  a  land- 
lord's warrant  and  bought  in,  has  an  insurable  interest  in 
the  whole ;  and  he  is  not  guilty  of  fraud  in  not  disclosing 
such  other  ownership  when  applying  for  insurance  upon 
the  whole.  Columbia  Ins.  Co.  v.  Cooper,  50  Penn.  St. 
331.     1865. 

§  14.  Failure  to  communicate,  when  proposing  for 
insurance,  the  fact  of  an  existing  insurance  in  another 
comr>auy,  is  not  such  wrongful  concealment  as  to  sustain 


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GAENISHMENT  OR  TRUSTEE    PROCESS. 


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a  plea  of  fraud.    McDonnell  v.  Beacon  F.  &  L.  Ass.  Co.  7 
U.  C,  C.  P.  308.     1858. 

§  15.  The  adjuster  of  the  company  disputed  the 
assured's  claims,  and  gave  his  opinions  falsely  concerning 
questions  of  law  and  fact  between  the  parties,  the  as- 
sured having  the  same  means  of  knowledge  as  himself, 
and  threatened  not  to  pay  without  suit,  so  that  the  as- 
sured hastily  made  an  unwise  and  unjust  settlement. 
ITeM,  as  the  position  of  the  adjuster  is  not  fiduciary,  but 
hostile,  the  assured  cannot  have  relief  against  the  conse- 
quences of  his  own  want  of  firmness.  Mayhew  v.  Phoenix 
Ins.  Co.  23  Mich.  105.     1871. 

See  Agent,  §  59.  Evidence,  8,  20.  False  Swearing,  8.  Negligence,  6. 
Pleading  and  Practice,  16,  85.  Premium  Notes,  21,  32.  Questions  for  Court 
and  Jury,  19.  Set-off,  9.  Stock  Notes  and  Subscriptions,  1.  And  see 
Value. 


GARNISHMENT  OR  TRUSTEE  PROCESS. 

§  1.  A  loss  incurred  on  a  fire  insurance  policy,  the 
amount  of  which  has  been  fixed  by  the  award  of  arbitra- 
tors, indifterently  chosen  by  the  insured  and  insurer,  may 
be  levied  on  by  attachment  or  execution,  as  a  debt  due  to 
the  assured.  JSoyle  v.  Franklin  Ins.  Co.  7  Watts  &  Serg. 
Pa.  76.     1844. 

§  2.  The  garnishee  is  liable  on  a  claim  for  a  loss  un- 
ascertained wl^n  notice  was  served,  but  which  was  ascer- 
tained before  answer;  nor  does  any  assignment  of  the 
claim  by  the  debtor  after  notice  affect  the  liability.  Frank- 
lin Fire  Ins.  Co.  v.  West,  8  Watts  &  Serg.  Pa.  350.     1845. 

§  3.  Under  trustee  proceeding  the  defendant  is  enti- 
tled to  any  set-off  which  he  could  plead  against  the  prin- 
cipal debtor,  and  is  not  liable  for  interest  after  the  date  of 
the  notice.  Swamscot  Machine  Co.  v.  Partridge,  5  Fost. 
N.  H.  3^9.     1852. 

§  4.    Action  on  a  policy  of  insurance ;  plea,  trustee 


GARNISHMENT    OR   TRUSTEE   PROCESS. 


319 


process  pending.  Held^  tliat  the  pending  trustee  process* 
was  no  defense  to  the  suit.  The  defendants  might  have 
applied  for  a  stay  of  proceedings,  if  the  trustee  process 
were  not  determined  before  the  trial  came  on.  But  the 
sum  paid  by  the  defendants,  to  satisfy  the  judgment 
against  them  in  the  trustee  process,  should  be  deducted 
from  the  amount  due  to  the  plaintiff  at  the  time  of  the 
judgment.  This  would  be  an  answer  ])ro  tanto  to  the 
plaintiff's  claim,  and  would  not  require  a  special  plea,  as 
our  statute  provides  that  such  a  defense  may  be  made 
under  the  general  issue.  As  a  general  rule  the  garnishee 
will  not  be  liable  for  interest,  while  the  attachment  remains 
in  force,  unless  he  has  been  found  guilty  of  neglect  or 
fraud.  But  if  there  has  been  any  unreasonable  delay  oc- 
casioned by  the  conduct  of  the  garnishee,  such  case  will 
form  an  exception  to  the  rule  that  he  is  not  chargeable 
with  interest.  Nevins  v.  Rockingham  Fire  Ins.  Co.  5 
Fost.  N.  H.  22.     1852. 

*  §  5.  Certain  policies  were  assigned  to  Middlesex  In- 
stitution for  Savings,  as  collateral  security  for  a  debt,  with 
a  stipulation  that  "  any  surplus  of  the  proceeds  of  said 
policies  is  to  be  paid  to  William  Crawford."  The  Savings 
Institution  received  the  amount  of  the  policies,  and  a  cred- 
itor of  Crawford  sought  to  charge  them  with  the  surplus. ' 
Held^  that  the  stipulation  did  not  give  Crawford  a  right 
of  action  for  the  surplus,  and  could  not  therefore  render 
the  Institution  chart^eable  in  the  trustee  process  in  favor 
of  his  creditors.  Field  v.  Crawford,  0  Gray,  Mass.  116. 
1850. 

§  G.  If  a  foreign  insurance  company  have  complied 
with  the  law  of  the  State,  in  regard  to  foreign  insurance 
companies,  and  have  an  agent  in  such  State,  they  are  liable 
to  garnishment,  by  process  served  on  the  agent ;  the  latter 
being  held  to  be  a  "  chief  or  manaariusi  officer  of  such  cor- 
poration,"  within  the  meaning  of  the  2Cth  section  of  the 
execution  law  in  Missouri.  McAllister  v.  Commonwealth 
Ins.  Co.  28  Mo.  214.     1859. 

§  7.  Where  a  policy  is  assigned  after  loss,  and  the 
company  is  sought  to  be  charged  as  garnishees  of  the  as- 
signor, it  is  the  duty  of  the  assignee  to  give  notice  of  the 


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GARNISH3IENT  OR  TRUSTEE  PROCJESS. 


assignment  in  season  to  enable  the  company  to  show  such 
assignment  in  their  answer,  or,  at  least,  before  judgment 
against  them.  Having  received  such  notice,  if  the  com- 
pany neglect  to  show  it  in  defense,  they  cannot  resist  a 
subsequent  claim  of  the  assignee ;  and  on  the  other  hand, 
having  shown  such  assignment,  they  cannot  be  charged  as 
garnishees.  Walters  v.  Washington  Ins.  Co.  1  Iowa,  404. 
1855. 

§  8.  An  unadjusted  or  unliquidated  claim  for  a  loss 
upon  a  policy  of  insurance  against  fire,  is  subject  to  attach- 
ment in  the  hands  of  the  insurance  company.  Girard  Fire 
Ins.  Co.  V.  Field.  Supreme  Court  of  Pa.  at  Philadelphia, 
1862.  Cited  by  the  "Legal  and  Insurance  Keporter"  of 
Philadelphia. 

§  9.  Where  a  policy  provided  that  the  loss,  if  any, 
should  be  paid  within  sixty  days  after  due  notice  and 
proof  thereof,  &c.;  Held,  that  the  claim  was  contingent, 
and  that  the  company  could  not  be  charged  as  trustees  of  ^^ 
the  insured  in  an  action  commenced  after  a  loss,  but  before 
notice  and  proof.     Davis  v.  Davis,  49  Me.  282.     1862. 

§  10.  An  insurance  company  is  not  chargeable  as 
trustee  for  the  amount  of  a  loss  under  a  policy  after  pay- 
ment thereof,  made  in  good  faith  by  its  authorized  agent, 
without  knowledge  of  any  actual  or  intended  service  of 
prclcess  upon  the  company,  although  such  payment  was 
made  after  the  service  of  the  writ  upon  the  secretary  of 
the  company,  if  there  was  no  neglect  of  duty  in  giving 
notice  of  the  service  to  the  agent.  And  such  neglect  of 
duty  is  not  shown  by  the  omission  of  the  secretary  for 
three  hours  after  service,  to  send  notice  thereof  from  B.  to 
W.,  a  distance  of  forty  miles,  if  the  agent  has  temporarily 
gone  to  the  latter  place  for  the  purpose  of  investigating, 
and  with  authority  to  adjust  the  loss.  Spooner  v.  How- 
land,*  4  Allen,  Mass.  485.     1862. 

§  11.  In  Pennsylvania  an  unadjusted  and  unliqui- 
dated claim  for  a  loss  upon  a  policy  of  insurance  against 
fire  is  subject  to  attachment  in  the  hands  of  the  insurance 
company.  Girard  Fire  &  Marine  Ins.  Co.  v.  Field,  45 
Penn.  St.  129.     1863. 


GARNISHMENT  OB   TRUSTEE   PROCESS. 


321 


§  12.  Until  proof  and  an  adjustment  of  a  loss  accord- 
ing to  the  terms  and  conditions  of  the  policy,  or  their 
waiver  by  the  assurer,  the  liability  is  contingent,  and  the 
assurer  is  not  liable  under  the  statute  of  Minnesota  as 
garnishee  of  the  insured.  Gies  v.  Bechtner,  12  Minn.  279. 
1867. 

§  13.  A  claim  for  loss  though  unadjusted  is  a  subject 
of  foreign  attachment.  West  v.  Franklin  F.  Ins.  Co.  2 
Pa.  Law  J.  [70].     1844. 

§  14.  An  insurance  company  being  garnished,  an- 
swered that  they  owed  the  assured  nothing,  because 
the  policy  was  on  goods  in  a  store  detached,  whereas 
there  was  another  store  adjoining  which  affected  the 
risk  very  materially.  Held,  such  misrepresentations,  if 
true,  invalidated  the  policy,  and  the  answers  in  a  trustee 
process  being  by  statute  to  be  considered  as  true,  the 
plaintiff  cannot  be  allowed  to  prove  there  was  no  other 
adjoining  building  increasing  the  risk,  nor  that  the  in- 
surance was  not  on  goods  in  a  detached  building. 
Bostwick  V.  Bass,  99  Mass.  4G9,     1868. 

§  15.  The  policy  providing  for  an  examination  of 
the  assured  under  oath,  if  required,  else  the  loss  not  to  l^e 
paid,  and  the  proofs  of  loss  being  unsatisfactory,  the  com- 
pany required  a  personal  examination  and  used  due  dili- 
gence notify  the  assured  but  could  not  find  him.  Held^ 
the  condition  precedetot  is  not  waived,  whether  its  breach 
is  intentional  or  not ;  the  attaching  creditor  stood  in  no 
better  position  than  the  assured,  and  could  not  recover. 
Harris  v.  Phoenix  Ins.  Co.  25  Conn.  310.     1868. 


See  Damages,  §  9. 
Practice,  64. 

21 


Limitation  Clause,  15.     Set-off,  8.     Pleading  and 


GENERAL  AVERAGE. 

§  1.  A  fire  happening  in  the  vicinity  of  the  building 
containing  the  insured  goods,  the  assured,  with  the  con- 
sent of  the  underwriters,  bought  some  blankets  and  spread 
them  over  the  windows  and  doors  and  thus  saved  the 
building  and  contents,  but  the  blankets  were  destroyed. 
Held^  that  the  los«  of  blankets  was  not  one  protected  by 
the  policy,  but  that  assured  might  claim  on  the  ground 
of  a  sacrifice  made  by  them  for  the  preservation  of  the 
property  endangered  by  the  fire,  and  for  a  proportion  of 
which  sacrifice  they  were  equitably  if  not  legally  entitled 
to  recover.  Held^  further,  that  the  adjoining  buildings,, 
which  might  also  have  been  destroyed,  had  the  store  con- 
tainirpr  +Tie  insured  goods  taken  fire,  and  on  which  the 
defend  .  had  underwritten,  were  not  liable  to  pay  a 
porti(  i  r  this  expense,  as  the  contribution  must  be 
limited  to  tlie  building  and  property  therein,  immedi- 
ately aave'l.  ^'Vr'^es  V.  Boston  Ins.  Co.  6  Pick.  Mass.  182. 
1828. 


GOODS  IN  TRUST  OR  ON  COMMISSION. 

§  1.  The  assured  were  commission  merchants,  and 
took  out  a  policy  with  defendants  for  "  $10,000,  on  mer- 
chandise in  their  store  and  by  them  held  in  trust."  At 
time  of  eftecting  the  insurance,  they  represented  to  the 
company  that  they  were  in  the  habit  of  receiving  goods 
for  sale  ;  that  they  had  made  advances  on  some  of  them, 
and  upon  some  had  not  made  advances  ;  that  the  goods  on 
hand  ^^ere  constantly  changing  by  sales  and  new  consign- 
ments ;  and  that  they  wished  a  policy  on  such  goods  to 
secure  themselves  against  loss  by  fire,  as  the  consignors 
might  not  be  able  to  repay  the  advances.  These  represen- 
tations being,  by  agreement,  made  part  of  the  case;  Held^ 
that  the  policy  covered  all  the  goods  which  assured  held 
as  consignees,  but  that  it  must  be  limited  to  the  interest 


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GOODS   IN   TEU8T  OR    ON    COMMISSION. 


323 


which  they  had  in  the  goods  at  the  time  of  the  loss,  and 
could  not  be  extended  so  as  to  protect  the  interest  of  any 
of  the  consignors.  Parks  v.  General  Interest  Assurance 
Co.  5  Pick.  Mass.  34.     1827. 

§  2.  "Where  the  policy  insured  "  goods,  as  well  the 
property  of  the  assured,  as  those  held  by  them  on  commis- 
sion ; "  and  further  agreed  to  make  good  to  the  assured 
all  loss  and  damage,  to  be  estimated  according  to  "  the 
true  and  actual  value  "  of  the  property  at  the  time  the  loss 
shall  happen  ;  Ileld^  that  assured  might  recover  the  whole 
value  of  such  property  destroyed,  and  not  merely  their 
lien  or  advances  made  thereon.  De  Forest  v.  Fulton  Fire 
Ins.  Co.  1  Hall,  N.  Y.  84.     1828. 

§  3.  Under  policy  in  plaintiff's  own  name  providing 
that  "  goods  in  trust  or  on  commission  must  be  insured  as 
such,"  <fec. ;  Held,  that  plaintiff  could  not  recover  for  ad- 
vances made  on  certain  musical  instruments  left  with  him 
in  trust,  as  they  were  not  covered  by  the  policy.  Brichta 
v.  New  York  Lafayette  Ins.  Co.  2  Hall,  N.  Y.  372.    1829. 

§  4.  Where  assured  took  out  a  policy  of  insurance 
against  fire  "on  his  goods,  stock  in  trade,  <fec.,  or  on  com- 
mission, or  held  in  trust ; "  Held,  that  the  policy  covered » 
goods  in  stores,  bought  on  joint  account  and  sold  for  the 
mutual  profit  of  the  insured  and  another  party,  the  in- 
sured being  also  in  advance  on  the  adventure.  I£eld  also, 
that  insured  was  absolute  owner  of  one-half  of  the  goods 
in  stores,  and  had  an  insurable  interest  in  them,  as 
"  stock  in  trade,"  and  also  to  cover  his  advances  on  the 
whole  stock.  Millaudon  v.  Atlantic  Ins.  Co.  8  La.  557. 
1835. 

§  5.  A  policy  on  "  merchandise  generally  and  without 
exception  their  own,  or  held  by  them  in  trust,  or  on  con- 
signment," in  the  warehouse  of  a  commission  and  forward- 
ing merchant,  covers  "  household  furniture,  wearing  ap- 
parel and  books  "  received  and  held  on  deposit  by  the  said 
firm  subject  to  the  order  of  the  owner ;  and  such  owner 
can  recover  his  proportionate  share  of  the  insurance  money 
received  by  the  said  firm  under  such  policy.  Siter  v. 
Morrs,  13  Penn.  St.  218.     1850. 


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GOODS   DT  TRUST  OR   ON  COSIMISSION. 


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§  6.  Policy  provided  that  goods  in  trust  or  on  com* 
mission  must  be  msured  as  such,  otherwise  the  policy  will 
not  cover  such  property.  Assured  took  out  policy  in  his 
own  name  without  declaring  that  the  goods  were  m  trust, 
and  subsequently  endorsed  upon  it  a  transfer  to  his  land- 
lord, with  a  recital  that  he  had  effected  it  for  his  use,  and 
as  his  a^ent.  Upon  motion  to  take  off  nonsuit ;  Held,  that 
the  policy  was  within  the  clause ;  and  that  the  nonsuit 
was  rightly  entered.  Keely  v.  Insurance  Co.  1  Philadel- 
phia, Pa.  175.     1851. 

§  7.  One  of  the  conditions  of  a  policy  was  in  these 
words :  "  Goods  held  in  trust  or  on  commission  are  to  be 
declared  and  insured  as  such,  otherwise  the  policy  will 
not  cover  such  property ;  goods  on  storage  must  be  sepa- 
rately and  specially  insured."  The  assured  held  the  goods 
in  pawn,  ileld^  that  they  were  goods  in  trust,  and,  as  he 
made  no  declaration  and  msurance  of  them  as  such,  accord- 
ing to  the  condition  of  his  policy,  they  were  not  covered 
by  it.  Rafael  v.  Nashville  Marine  and  Fire  Ins.  Co.  7  La. 
An.  244.     1852. 

§  8.  Insurance  was  upon  "  goods  his  own  or  held  by 
him  for  others  on  commission"  by  a  policy  stipulating 
that  only  three-fourths  of  the  value  of  the  property 
should  be  paid ;  Held^  that  assured  might  recover  the  full 
three-fourths  of  the  value  of  the  goods,  although  con- 
signor had  not  ordered  the  insurance  or  known  of  the 
policy,  and  although  assured  had  not  made  any  advances 
on  them.  Lee  v.  Howard  Fire  Ins.  Co.  11  Cush.  Mass. 
324.     1853. 

§  9.  Coach  builder  took  policy  on  stock,  his  own,  and 
held  in  trust  and  on  commission.  Held^  that  out  of  the 
insurance  money  he  might  paiy  himself  in  full,  and  qucere^ 
whether  he  could  be  compelled  to  divide  the  surplus  with 
his  customers.  Dalgleish  v.  Buchanan,  16  Cases  in  the 
Court  of  Sessions,  N.  S.  332.     1854. 

§  10.  A  provision  in  a  policy,  that  "  property  held  in 
trust  or  on  commission  must  be  insured  as  such,"  other- 
wise the  policy  will  not  cover  it,  includes  everything  in 
which  the  insured  has  only  a  qualified  interest  with  the 


fen( 
Ac 
tnis 
the 


!  'I! 


GOODS  m  TRUST  OB   ON   COMMISSION. 


325 


possession,  while  the  ownership  is  in  a  third  person.  Tur- 
ner V.  Stetts,  28  Ala.  420.     1856. 

§  11.  Assured  was  described  as  a  "corn  and  flour 
factor ;"  the  policy  was,  amongst  other  things,  on  goods 
in  his  warehouses,  and  on  "goods  in  trust  or  on  commis- 
sion therein."  The  company  covenanted  to  make  good 
"  any  damage  by  fire  to  the  property  insured."  The  as- 
sured was  a  wharfinger  and  warehouseman ;  he  had  in  his 
warehouses  ^oods  belonging  to  his  customers,  which  were 
deposited  with  him  in  that  capacity,  and  on  which  he  had 
a  lien  for  the  charges,  cartage,  and  warehouse  rent,  but  no 
further  interest  of  his  own.  No  charge  was  made  to  custom- 
ers for  insurance,  nor  were  they  informed  of  the  existence 
of  the  policy.  The  assured's  warehouse  was  consumed  by 
fire  with  all  the  goods  in  it.  The  company  paid  the  value 
of  the  assured's  own  goods,  and  the  amount  of  his  lien  on 
his  customer's  goods,  but  refused  to  pay  the  value  of  the 
customers'  interest  in  the  goods  beyond  the  lien.  ITeld, 
that  the  goods  of  the  customers  were  "  in  trust,"  within 
the  meaning  of  the  policy,  and  that  the  assured  was  enti- 
tled to  recover  the  entire  value.  Waters  v.  Monarch  Fire 
&  Life  Ins.  Co.  5  Ellis  &  Black.  Q.  B.  870.  (85  E.  C.  L.  R. 
868.)     1856. 

§  12.  Plaintiffs  were  manufacturers  of  clothing,  and 
were  insured  $27,500,  under  different  policies,  as  follows : 
"  On  their  stock  of  rea^ily-raade  clothing  and  other  hazard- 
ous merchandise,  the  property  of  insured,  or  held  by  them 
in  trust  or  on  commission,  or  sold  but  not  delivered,  con- 
tained in  No.  112  Fulton  street."  Defendants  had  left 
with  plaintiffs  a  lot  of  cloth  to  be  manufactured  into  cloth- 
ing, and,  while  in  their  possession,  part  of  it  was  destroyed 
by  fire,  together  with  all  the  stock  of  plaintiffs,  who  made 
out  a  schedule  only  of  their  own  property,  which  exceeded 
$27,500,  amount  insured,  and  received  the  entire  sum  from 
insurance  companies. 

This  action  was  brought  by  plaintiff  to  recover  of  de- 
fendant the  amount  due  for  making  and  trimming  his  cloth. 
A  clause  in  the  above  policies  was,  that  property  "  held  in 
trust  or  on  commision  must  be  insured  as  such,  otherwise 
the  policy  will  not  cover  such  property."    Jletdy  that  the 


1  i:  n 


326 


GOODS   IN  TRUST  OR   ON  COMMISSION. 


i  iii 


goods  of  tbe  defendant  were  goods  held  in  trust  by  the 
plaintiff;  that  the  words,  "held  in  trust,"  in  the  policy, 
were  sufficient  to  cover  defendant's  goods,  and  that  it  was 
a  just  presumption  that  the  words  were  used  to  protect 
goods  so  situated,  and  hence  the- burden  was  on  the  plaint- 
iff to  show  that  the  words  had  been  employed  by  him  in 
a  restricted  sense,  to  wit,  "  as  only  covenng  goods  for 
which  orders  to  insure  had  been  received ;"  and,  such  fact 
not  having  been  shown,  defendant  was  entitled  to  offset 
his  proportion  of  the  insurance  money  against  the  plaint- 
iff's demand  for  manufacturing  the  cloth.  Stillwell  v. 
Staples,  6  Duer,  N.  Y.  63.  1856.  Eeversed,  19  N.  Y.  401. 
1859. 

§  13.  These  words  in  a  fire  policy :  "The  proj)erty  of 
the  insured  or  held  in  trust,"  include  cloth  left  with  the 
assured  to  be  manufactured  into  clothing.  Stillwell  v. 
Staples,  19  N.  Y.  401.     1859. 

§  14.  Where  a  policy  was  issued  to  a  common  car- 
rier "  on  goods"  in  a  certain  warehouse  as  "  his  own  and 
in  trust  as  carrier ;"  Held,  in  an  action  on  the  policy,  that 
to  the  amount  named,  the  whole  value  of  goods  in  the 
warehouse  in  the  possession  of  the  plaintiff  as  carrier  was 
covered  by  the  policy  and  not  merely  the  plaintiff's  inter- 
est as  carrier  in  such  goods,  notwithstandmg  a  condition 
of  the  policy  that  "  goods  held  in  trust,  or  on  commission, 
were  to  be  insured  as  such,  other^vise  the  policy  should 
not  extend  to  cover  such  property."  London  &c.  Railway 
Co.  V.  Glyn,  1  Ell.  &  Ell.  Q.  B.  652.  (102  Eng.  C.  L.) 
1859. 

§  15.  Where  a  condition  in  a  policy  of  insurance  pro- 
vided "  that  property  held  in  ti*ust  or  on  commission,  must 
be  insured  as  such,  otheiwise  the  policy  will  not  cover 
such  property.  *  *  *  *  ,  By  property  held  in  ^rust  is 
intended  property  held  under  a  deed  of  trust,  or  under  the- 
appointment  of  a  court,  or  held  as  collateral  secui'ity." 
Iieldj  that  holding  property  in  secret  trust,  to  defraud  the 
creditors  of  the  real  owner,  was  not  such  a  holding  in  trust 
as  was  contemplated  by  the  condition — that  if  held  as  a 
security  for  a  debt,  it  would  be  within  the  condition. 
Ayres  v.  Hartford  Fu'e  Ins.  Co.  17  Iowa,  176.     1864. 


GUNPOWDER. 


327 


§  IG.  The  term  "  trust"  is  not  the  technical  word,  but 
applies  to  ordinary  bailments,  and  covers  a  quantity  of 
barrels  held  on  storage.  Phoenix  Ins.  Co.  v.  Favorite,  49 
111.  259.  1868.  Home  Ins.  Co.  v.  Favorite,  4G  111.  2G3. 
1867. 

§  17.  Policy  taken  T>y  commission  merchants  on 
goods — their  own,  or  "  sold,  but  not  removed."  Ileld^  to 
cover  goods  which  had  been  sold  and  paid  for,  and  tech- 
nically delivered,  on  which  there  was  therefore  no  lien 
nor  any  responsibility,  and  that  the  risk  is  intended  to 
follow  the  property  for  the  benefit  of  successive  owners, 
though  not  especially  designated,  nor  having  given  a  pre- 
vious authority ;  nor  is  this  forbidden  by  law.  It  is  done 
to  save  the  expen^  '  of  a  new  insurance  after  sale.  It  is 
not  the  same  as  "  sold,  but  not  delivered,"  which  refers  to 
sales,  where  the  ownership  has  not  changed  for  want  of 
technical  delivery. 

The  commission  merchant  may  sue  in  his  own  name 
and  recover  the  full  amount  as  "trustee  of  an  express 
trust"  under  the  Code,  §  113.  Waring  v.  Indemnity  Fire 
Ins.  Co.  6  Hand.  606.     1871. 

See  By-Laws  and  Conditions,  §  14.  Damages  beyond  Actual  Loss,  8.  In- 
terest in  Policy,  2.  Other  Insurance,  100,  Pleading  and  Practice,  84.  Title, 
67.    What  Property  covered  by  Policy,  39.  * 


GUNPOWDER. 


§  1.  Insurance  was  on  "  six  buildings  in  Mobile,  Ala- 
bama, and  privileged  to  contain  extra  hazardous  merchan- 
dise." Some  of  assured's  tenants,  without  his  knowledge, 
kept  gunpowder  on  his  premises,  and  in  course  of  tlje  con- 
flagration it  exploded^  The  words,  "gunp  >  \der  is  not 
insurable  unless  by  special  agreement,"  were  inserted  in 
the  enumeration  of  hazards  at  the  end  of  the  extra  haz- 
ardous articles,  and  immediately  following  them  was  the 
construction  of  the  policy,  gunpowder  was  included  among 
the  extra  hazardous  articles,  and  the  buildings  being  priv- 


■ 


i:' 


V 


t-:!ti:i,    si 


328 


GUNPOWDER. 


ileged  to  contain  extra  hazardous  articles,  the  assured  had 
a  right  to  put  gunpowder  in  them ;  but  in  case  of  loss  by 
fire,  he  was  not  entitled  to  compensation  for  the  loss  of 
such  gunpowder,  as  there  was  no  special  agreement  to  in- 
sure it.  Duncan  v.  Sun  Fire  Ins.  Co.  6  Wend.  N.  Y.  488. 
1831. 

§  2.  Placing  gunpowder  in  a  building  with  a  lighted 
match  for  the  pui'pose  of  blowing  it  up,  to  prevent  the 
spread  of  a  conflagration,  is  not  a  storing  of  it,  within  the 
meaning  of  the  clause  prohibiting  "the  storing  of  gun- 
powder on  the  premises."  Citv  Fu'e  Ins.  Co.  v.  Corlies,  21 
Wend.  N.  Y.  3(57.     1839. 

§  3.  Where  by  the  conditions  subjoined  and  referred 
to,  in  a  policy  of  insurance  on  goods  against  fire,  it  is  de- 
clared, "  that  if  there  should  at  any  time  be  more  than 
twenty-five  pounds  weight  of  gunpowder  on  the  premises 
insured,  or  where  any  goods  are  insured,  such  insurance 
should  be  void,  and  no  benefit  derived  therefrom,"  &c. ; 
the  deposit  of  gunpowder,  over  the  above  mentioned 
weight,  will  avoid  the  policy,  although  it  was  brought  in- 
to the  store  for  shipment,  and  was  removed  from  the  store 
at  the  time  the  fire  broke  out,  but  long  before  the  fir 
reached  the  building  containing  the  goods  insured.  Faull 
ner  v.  Central  Fire  Ins.  Co.  of  New  Brunswick,  1  Kerr, 
New  Brunswick,  279.     1841. 

§  4.  Where  policy  provided  that "  the  keeping  of  gun- 
powder for  sale  or  on  storage  upon  or  in  the  premises  in- 
sured, without  written  permission,  shall  render  the  policy 
void,"  and  it  was  shown  that  assured  had  a  small  quantity 
of  powder  in  the  stoi'e,  and  for  sale,  before  the  policy  was 
issued,  and  that  it  remained  there  until  the  building  was 
destroyed,  but  none  was  either  sold  or  offered  for  sale  after 
the  policy  issued ;  Held,  that  the  policy  was  not  thereby 
avoided.  Protection  Ins.  Co.  v.  Harmer,  2  Ohio  St.  (22 
Ohio)  452.     1853. 

§  5.  Policy  of  insurance  against  fire,  "  on  a  stock  of 
goods  and  merchandise  contained  in  plaintiff's  store," 
provided  that  "  the  keeping  of  gunpowder  for  sale  or  on 
storage  upon  or  in  the  premises  insured  should  render- 


GUNPOWDER. 


32^ 


the  policy  void."  The  assured  kept  a  country  store,  and 
usually  had  one  or  two  kegs  of  powder  on  hand,  from 
which  he  retailed  to  customers,  and  had  one  keg  at  time 
of  fire.  In  evidence  it  had  been  shown  that  it  was  usual 
to  keep  gunpowder  in  small  quantities  as  part  of  the 
stock  of  such  store.  Held^  that  the  word  "  premises  "  re- 
ferred to  buildings  insured,  and  that  the  gunpowder  was 
not  kept  "  upon  or  in  the  premises  insured,"  within  the 
meaning  of  the  above  prohibition.  Leggett  v.  ^tna  Ins. 
Co.  10  Rich.  Law,  S.  C.  202.     1 85G. 

§  6.  Where  one  of  the  printed  clauses  in  a  policy  of 
insurance  made  the  nolicy  void,  in  case  "gunpowder" 
should  be  kept  upon  tiie  premises  without  written  consei.t 
and  permission  of  the  company,  and  a  second  printed  clause 
provided  "  that  no  greater  amount  than  twenty-five  pounds 
of  gunpowder  shall  at  any  time  be  placed  in  the  building 
described  in  this  policy,  said  powder  to  be  kept  in  tin  or 
other  metallic  cannisters,"  and  there  was  no  other  clause, 
either  written  or  printed,  in  reference  to  it ;  Held^  that 
the  second  clause  was  a  modificati  >n  of  the  first,  and  per- 
mitted the  assured  to  keep  on  hand  in  tin  or  metallic 
cannisters  any  amount  of  gunpowder  not  exceeding 
twenty-five  pounds.  Bowman  v.  Pacific  Ins.  Co.  27  Mo. 
152.     1858. 

§  7.  Where  by  a  fire  policy  it  was  provided  that  the 
keeping  of  gunpowder  "  without  written  permission  in  the 
policy  "  should  render  the  policy  void ;  Held^  that  if  the 
agent  taking  insurance  on  a  stock  of  goods  knew  that  gun- 
powder was  kept  and  to  be  kept,  the  keeping  it  would 
not  render  the  policy  void,  whether  permission  to  keep  it 
was  endorsed  or  intended,  or  neglected  to  be  endorsed  or 
not.  Peoria  Marine  Fire  Ins.  Co.  v.  Hall,  12  Mich.  202., 
1864. 

See  Agent,  §  74.    Risk,  5,  6, 11.    Use  and  Occupation,  41. 


.;  i; 


ILLEGALITY   OF   CONTRACT. 

§  1.  Two  men  agreed,  in  partnership,  to  undertake 
insurance,  and,  at  the  close  of  business,  one  brought  a  bill 
iigainst  the  other  for  an  account,  &c.  Dismissed,  because 
such  joint  business  was  prohibited  by  Stat.  6  Geo.  I,  c.  18, 
s.  12.     Watts  V.  Brooks,  3  Ves.  612.     1798. 

§  2.  No  recovery  can  be  had  under  an  agreement  for 
illegal  insurance,  though  the  money  had  been  paid  to  the 
broker.    Thompson  t.  Thompson,  7  Ves.  470.     1802. 

§  3.  A  contract,  in  consideration  of  forty  guineas,  to 
pay  one  hundred  pounds  in  case  Brazilian  shares  should 
be  done  at  a  certain  sum  on  a  certain  day,  subscribed  by 
several  persons,  each  for  themselves,  is  void  as  a  gambling 
policy  of  insurance,  under  14  Geo.  Ill,  c.  48.  Patterson 
V.  Powell,  9  Bing.  320.     (23  E.  C.  L.  598.)     1832. 

§  4.  An  insurance  company  in  making  a  loan  may 
la\vfully  require  the  borrowers  to  insure  the  property  with 
the  company,  and  pay  the  pren^iam  in  addition  to  the 
legal  rate  of  interest.  New  York  Fire  Ins.  Co.  v.  Donald- 
son, 3  Edw.  Ch.  N.  Y.  199.     1838. 

§  5.  After  a  proposition  made  to  an  insurance  com- 
pany, an  agreement  entered  into,  and  the  benefit  for  which 
he  stipulated  received  from  it,  it  does  not  lie  with  assured 
to  say  that  his  proposition  was  not  such  as  the  statute 
contemplated.     Hill  v.  Reed,  16  Barb.  N.  Y.  280.     1853. 

§  6.  By  the  charter  of  an  insurance  company,  all  per- 
sons insured  became  members  of  the  company,  and  all 
claims  and  losses,  sustained  to  a  greater  amount  than  the 
company  had  funds  on  hand  to  discharge,  were  to  be 
raised  by  assessment  to  be  made  ratably  on  the  members 
accordifig  to  the  amouLt  of  each  member's  insurance,  pro- 
vided that  such  assessment  should  not  exceed  the  amount 
of  the  note  or  obligation  given  by  each  member,  and  one 
per  cent,  on  the  principal  sum  mentioned  in  each  policy. 
After  the  business  had  been  carried  on  for  some  time,  the 
directors  resolved  that  the  company  should  raise  a  guar- 
anty capital   of  $150,000,  which   should  be  put  up  in 


lie 


ILLEGALITY  OF  CONTRACT. 


331 


money  bonds,  payable  on  demand,  and  secured  by  a  mort- 
gage or  stocks  as  collateral  security,  which  should  be  lia- 
ble to  assessment  pro  rata  to  make  good  any  losses  which 
the  company  might  sustain  after  all  other  available  means 
had  been  exhausted.  The  contributor  to  such  capital  was 
to  receive  six  per  cent,  per  annum  on  the  amount  of  his 
bond  out  of  the  earnings  of  the  company.  The  corpora- 
tion having  become  insolvent,  an  assessment  was  made  by 
the  order  of  this  court  on  the  guaranty  capital,  and  a  bill 
filed  to  recover  on  the  defendant's  mortgage  the  amount 
assessed  against  him.  Held,  that  the  corporation  had  no 
power  to  enter  into  contract  with  the  contributors  to  the 
guaranty  fund;  and  that  such  contract  was  illegal  and 
void,  and  could  not  be  enforced  either  in  a  court  of  law  or 
equity.  Trenton  Mut.  Life  &  Fire  Ins.  Co.  v.  McKelway, 
1  Beasley,  N.  J.  133.     1858. 

§  7.  A  policy  issued  by  a  mutual  insurance  company, 
organized  under  the  act  of  April  10,  1849,  in  New  York, 
is  valid,  although  the  premium  for  such  policy  was  paid 
in  cash,  instead  of  by  premium  or  deposit  note.  Union 
Ins.  Co.  V.  Hoge,  17  How.  N.  Y.  127.     1858. 

§  8.  This  clause,  "  Any  person  applying  for  insurance, 
so  electing,  may  pay  a  definite  sum  in  money,  to  be  rixed 
by  said  corporation,  in  full  for  said  insurance,  and  in  lieu 
of  a  premium  note,"  in  the  charter  of  a  mutual  insurance 
company  in  New  York,  is  not  in  violation  of  the  provisions 
of  the  act  of  1849  in  New  York,  under  which  the  com- 
pany was  organized,  and  the  company  may  legally  take 
cash  premiums  in  lieu  of  deposit  notes.  The  receipt  of 
such  cash  premiums  does  not  destroy  the  principle  of  mut- 
uality. Mygatt  V.  New  York  Protection  Ins.  Co.  21  N. 
Y.  52.     1800. 

§  9.  Where  a  mutual  insurance  company  in  New  York 
received  both  cash  and  premium  notes  for  policies  of  in- 
surance, and  all  the  casli  received  had  been  expended  in 
payment  of  losses ;  Held,  that  the  premium  notes  were 
liable  to  pay  losses  under  cash  policies  issued  by  the  com- 
pany, and  that  assessments  on  such  premium  notes  for  the 
payment  of  such  losses  were  not  illegal.  White  v.  Havens, 
20  How.  N.  Y.  177.    1800. 


m 


332 


INCBEASE  OF    BISK. 


i; 


§  10.  At  the  common  law,  a8  well  as  under  tlie 
statute  of  New  York  against  betting  and  gaming,  a  policy 
of  fire  insurance  is  void,  unless  the  party  insured  has  at 
the  time  an  insurable  interest  in  the  property  insured. 
Freeman  v.  Fulton  Fire  Ins.  Co.  38  Barb.  N.  Y.  247. 
1862. 

§  11.  "Wager  policies  of  fire  insurance  are  void  at 
common  law,  irrespective  of  any  statute.  Freeman  v.  Ful- 
ton Fire  Ins.  Co.  14  Abb.  Pr.  398.     1862. 

See  Classification  of  Risks,  §  4.  Foreign  Insurance  Comp<>nies,  28.  Mut- 
ual Insurance  Companies  and  Members  of,  4.  Payment  Oi  Premium,  lU 
Use  and  Occupation,  33,  67. 


:  I 


INCREASE  OF   RISK. 

§  1.  The  articles  of  the  company  authorized  the  trust- 
ees to  declare  any  policy  null  and  void  on  the  happening 
of  certain  things  whereby  the  risk  was  rendered  greater. 
In  this  case  the  trustees  declared  the  policy  void  because 
of  the  putting  up  a  frame  building  adjoining  the  house  in- 
eared.  In  an  action  on  the  policy ;  Ileld,  that  the  issue  as 
to  whether  the  alteration  made  did  in  fact  increase  the 
risk  was  material,  and  must  be  sustained  in  order  to  de- 
feat the  policy.  Stetson  v.  Massachusetts  Mut.  Fire  Ins. 
Co.  4  Mass.  330.     1808. 

§  2.  Where  policy  contained  no  provision  against  an 
increase  of  risk,  other  than  the  general  statement  of  haz- 
ards, among  which  the  erection  of  buildings  adjoining  the 
premises  insured  was  not  mentioned ;  Held,  that  the  erec- 
tion of  other  buildings  adjoining  the  one  insured,  would 
not  avoid  the  policy,  although  the  risk  was  thereby  in- 
creased,^ unless  it  were  shown  that  the  fire  was  occasioned 
by  such  increase  of  risk.  Stebbins  v.  Globe  Ins.  Co.  2 
Hall,  N.  Y.  632.     1829. 

§  3.  Under  clause,  that  "  if  risk  be  increased  by  ad- 
vice, agency,  or  consent  of  assured,  (fee,  the  policy  should 
be  void ; "  Held,  that  if  the  jury  should  find  that  altera- 


INCREASE   OF   RISK. 


333 


tions  made  by  assured  had  increased  the  risk,  the  policy 
would  be  void.  Curry  v.  Commonwealth  Ins.  Co.  10 
Pick.  Mass.  535.     1830. 

§  4.  Policy  provided,  that  "  if  any  alteration  should 
be  made  in  any  house  or  building,  by  the  proprietor  there- 
of, after  insurance  has  been  made  thereon,  with  said  com- 
pany, whereby  it  may  be  exposed  to  greater  risk  or  haz- 
ard, from  fire,  than  it  was  at  the  time  it  was  insured,  then, 
in  every  such  case,  the  insurance  shall  be  void,  unless  an 
additional  premium  and  deposit,  after  such  alteration,  be 
settled  with,  and  paid  to,  the  directors ;  but  no  alterations 
or  repairs  in  buildings,  not  increasing  mch  risk  or  hazard, 
shall  in  anywise  aftect  the  insurance  previously  made 
thereon."  In  an  action  on  the  policy ;  Held,  that  any  al- 
teration made  in  the  building  insured  by  the  advice  or 
consent  of,  t)r  with  the  knowledge  of  the  assured,  would 
avoid  the  policy,  if  a  higher  rate  of  premium  would  have 
been  demanded  to  insure  the  building  in  its  altered  state 
than  would  have  been  demanded  before ;  if  a  higher  rate 
of  premium  would  not  have  been  demanded,  the  alteration 
was  immaterial;  but,  if  material,  the  policy  would  be 
avoided,  although  the  loss  was  not  occasioned  by  such  al- 
teration. Merriam  v.  Middlesex  Mut.  Fire  Ins.  Co.  21 
Pick.  Mass.  162.     1838. 

§  5.  Policy  covered  certain  buildings  in  Columbia, 
including  two  kitchens  of  wood  and  shingles.  Two  weeks 
before  the  fire,  on^  in  possession  built  an  oven  in  the 
kitchen,  put  up  frames  for  drying  meat,  and  smoked  it,  and 
the  fire  originated  in  that  kitchen.  One  condition  of  the 
policy  was,  "  that  an  appropriation  of  the  premises  for  any 
of  the  trades,  business  or  vocations,  denominated  hazard- 
ous, extra  hazardous,  or  included  in  the  memorandum  of 
special  rates,  in  the  condition  annexed  to  the  policv,  should 
suspend  the  policy  whilst  thus  appropriated.  The  policy 
was  also  made  and  accepted  in  reference  to  the  conditions 
annexed,  which  were  to  be  resorted  to,  to  explain  the 
riglitrt  and  obligations  of  the  parties.  Among  the  condi- 
tions thus  referred  to  came  first,  a  list  of  hazardous,  extra 
hazardous,  and  special  hazardous  articles,  but  no  mention 
of  "  smoking  meat."    Then  followed  a  provision  that  "  if 


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334 


INGBEASE  OF    BISK. 


the  risk  should  be  increased  by  any  means  within  control 
of  the  assured,  or  the  house  occupied  so  as  to  render  the 
risk  more  hazardous,  the  policy  should  be  void."  Heldy 
that  the  provision  against  an  increase  of  risk  by  acts  of 
assured,  was  not  to  be  controlled  or  limited  by  the  pre- 
vious condition  or  specification  of  hazards,  but  was  an  in- 
dependent condition  of  itself,  and  although  the  particular 
act  done,  therefore,  was  not  included  in  tte  said  classes  of 
hazards,  yet,  if  it  increased  the  risk,  the  policy  was  there- 
by avoided.  Boatwright  v.  ^tna  lus.  Co.  1  Strobliart^ 
S.  C.  281.     1847. 

§  G.  Under  condition  that  "if  risk  be  increased  by 
any  means  within  control  of  the  assured,  the  insurance 
shall  be  void,"  the  erection  of  other  buildings  by  assured 
on  his  own  premises,  near  the  property  insured,  so  as  to 
increase  the  risk,  avoids  the  policy.  Murdock  T.  Chenango 
Mut.  Ins.  Co.  2  Comst.  N.  Y.  210.     1849. 

§  7.  Policy  on  stock  in  trade  and  utensils  in  a  certain 
room  and  in  open  yard,  with  conditions  that  in  case  of 
alterations  increasing  the  risk  or  of  removal  of  any  prop- 
^  erty  insured  to  other  premises,  it  should  be  void,  unless 
•^  the  same  were  notified  to  the  company.  Certain  boilers 
were  removed  from  the  yard  into  the  buildins^.  Heldy  1st, 
that  the  burden  of  showing  an  increase  of  risk,  or  of  show- 
ing that  there  was  no  notice  given,  was  upon  the  company ; 
2d,  that  the  question  was  not  whether  the  removal  of  the 
boilers  increased  the  risk,  Ijut  whether  the  use  of  them  in 
the  ordinary  way  increased  the  risk ;  3d,  that  a  plea,  that 
the  boilers  were  put  in  use  and  used,  was  bad ;  it  should 
have  averred  a  perpetual  use.  Barrett  v.  Jermy,  3  Wels. 
Hurls.  <fe  Gord.  535.     (Exch.)     1849. 

§  8.  Assured  erected  a  new  building  beside  one  in- 
sured without  notice  to  the  insurers,  the  policy  being  silent 
on  the  subject,  and  no  injury  having  resulted  therefrom ; 
Held.,  that  the  policy  was  not  thereby  rendered  invalid. 
Gates  V.  Madison  County  Mut.  Ins.  Co.  1  Seld.  N.  Y.  469. 
1851. 

§  9.  Where  policy  provided  that  "  in  case  of  any  ma- 
terial increase  of  risk  to  the  property  insured  in  this  com- 


INCREASE   OF    EI8K. 


335 


pany,  such  increase  of  risk  must  be  notified  to  the  com- 
pany, and  written  permission  therefor  be  obtained  from  the 
secretary,  for  which  such  charge  as  may  be  proper  must  be 
paid,"  and  the  jury  were  instructed  that  the  assured  could 
not  recover,  if  they  should  find  that  certain  improvements 
or  alterations  either  in  themselves  or  during  their  progress 
to  completion,  occasioned  "any  additional  increase  of 
risk ; "  Held,  that  such  instruction  was  erroneous,  as  the 
increase  of  risk,  to  avoid  the  policy,  must  be  that  specified 
by  the  condition,  to  wit ;  a  "  material  increase."  Held 
furtlier,  that,  assuming  the  increase  of  risk  to  be  material, 
a  failure  on  the  part  of  assured  to  give  the  notice  would 
r.ot  be  excused  on  the  ground  that  he  had  used  reasonable 
diligence  to  give  such  notice,  but  had  been  prevented  by 
the  negligence  or  misconduct  of  the  company  or  its  sec- 
retary.    Allen  V.  Mutual  Fire  Ins.  Co.  2  Md.  111.     1852. 

§  10.  In  the  absence  of  any  stipulation  to  that  effect, 
the  erection  of  a  building  adjacent  to  the  one  insured,  by 
the  party  holding  the  policy,  though  it  may  increase  the 
risk,  will  not  avoid  the  policy.  But  if  such  an  act  of  the 
assured  party  is  the  cause  of  the  loss  to  the  company,  the 
insured  cannot  recover,  as  the  loss  is  occasioned  by  his 
own  misconduct.  Howard  v.  Kentucky  «fe  Louisville  Mut. 
Ins.  Co.  13  B.  Monroe,  Ky.  282.     1852. 

§  11.  The  policy  in  this  case  was  on  a  dwelling- 
house.  At  time  it  was  made  there  was  a  store,  belonging 
to  assured,  standing  within  thirty-six  feet  of  the  dwelling 
insured,  the  existence  of  which  had  been  made  known  to 
the  insurers  in  the  application.  Whilst  the  policy  was  in 
force,  the  store  l)uildmg  burnt  up,  and  assured  went  to 
work  to  rebuild  the  same ;  and  in  course  of  such  re-build- 
ing, the  carpenters  kept  tlieir  benches  and  tools  in  the 
store  building  and  worked  in  wood,  making  shavings,  <fec. 
The  store  building  then  took  fire  during  a  liigh  wind  and 
communicated  the  flames  to  the  dwelling  insured,  which 
was  also  destroyed.  The  insurers  had  had  no  notice  of 
this  rebuilding,  nor  was  there  anything  in  the  policy  pro- 
hibiting it.  lleld.,  that  assured  having  used  reasonable 
care  in  the  rel)uilding  of  the  store  building,  was  entitled 
to  recover.  Young  v.  Washington  County  Mut.  Ins.  Co. 
14  Barb.  5-45.     1853. 


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336 


INCREASE   OF    RISK. 


§  12.  The  assured  received  from  defendants  a  policy 
of  insurance  on  .£750,  by  which  they  insured  on  a  stone 
building  £400,  and  on  furniture  and  other  goods  therein 
£200 — all  at  the  rate  of  eight  per  cent.;  on  a  frame 
building,  £100,  and  on  goods  and  tools  therein  £50 — all 
at  the  rate  of  twelve  per  cent.  One  of  the  conditions  of 
the  policy  was  "  that  if  after  insurance  effected,  the  risk 
shall  be  increased  by  any  means  whatever  within  the  con- 
trol of  the  assured,  or  if  such  building  or  premises  shall 
be  occupied  in  any  way  so  as  to  render  the  risk  more 
hazardous  than  at  time  of  insuring,  such  insurance  shall 
be  void.  It  was  proved  that  after  effecting  this  insurance 
the  assured  put  up  a  steam  engine  in  the  frame  building, 
and,  in  order  to  make  it  as  safe  as  possible,  erected  a 
small  engine  house  of  brick  at  the  back  of  the  building. 
Some  witnesses  swore  that  if  care  was  taken,  the  risk 
would  not  be  increased,  but  many  swore  that  it  would ; 
and  it  was  proved  that  the  assured  was  told  by  the  agent 
of  the  company  that  if  he  put  up  the  engine  he  would 
have  to  apply  and  pay  an  additional  premium ;  that  he 
made  no  such  application ;  that  he  endeavored  to  effect  an 
insurance  at  other  offices,  but  was  refused,  the  risk  being 
considered  too  hazardous,  and  that  he  had  made  no  ar- 
rangement with  defendants  in  consequence  of  the  additional 
risk.  The  frame  building  was  destroyed  by  lire  which 
began  in  the  upper  part  of  it,  and  a  portion  of  the  goods 
in  it  were  destroyed.  The  stone  house  was  also  much  in- 
jured by  the  same  fire,  and  the  furniture  in  it  partially  de- 
stroyed. Held,  that  as  a  matter  of  form  it  was  necessary 
to  submit  it  to  the  jury,  whether  in  fact  the  risk  had  been 
increased,  but  that  under  the  facts  proved,  the  policy  was 
clearly  avoided.  Reid  v.  Gore  District  Mut.  Fire  Ins.  Co. 
11  Upper  Canada,  Q.  B.  345.     1853. 

§  13.  The  mere  fact  of  a  building  insured  as  a  "  dwell- 
ing-house "  being  subsequently  vacated,  will  not  av'oid  the 
polic}^  although  the  risk  be  thereby  increased,  if  the  in- 
sured intended  it  to  be  used  as  a  dwelling-house,  and  was 
making  reasonable  efforts  to  get  a  new  tenant.  Gamwell 
V.  Merchants'  &  Farmers'  Mut.  Fire  Ins.  Co.  12  Cush.  Mass. 
167.     1853. 

§  14.    Under  clause,  that,  if  risk  be  materially  in- 


INCREASE  OP  RISK. 


337 


creased  without  assured's  agency  or  consent,  notice  there- 
of shall  be  given  to  the  company  or  the  policy  shall  be 
void ;  Ileld^  that  such  an  increase  of  risk,  without  notice, 
avoided  the  policy ;  and  that  the  burden  of  proof  of  notice 
was  upon  the  assured ;  and  that  it  was  immaterial  whether 
the  loss  happened  in  consequence  of  such  increased  risk 
or  not.  Gardiner  v.  Piscataquis  Mut.  Fire  Ins.  Co.  38  Me. 
439.     1854. 

§  15.  Policy  provided  'that  "all  members  owning 
property  assured  in  the  company,  in  which  the  risk  has 
been  changed,  either  within  itself  or  by  surrounding  and 
adjacent  buildings,  shall  give  notice  thereof  to  the  direct- 
ors in  writing  as  early  as  possible,  and  shall  pay  such  ad- 
ditional premium  as  they  shall  determine."  And  the  policy 
also  prohibited  the  storing  in  the  premises  of  any  of  the 
articles  denominated  hazardous  (of  which  hay  was  one), 
unless  specially  agreed  to  by  the  company.  The  property 
insured  was  a  store  and  dwelling,  and.  subsequent  to  the 
insurance,  the  assured  put  up  a  small  frame  addition  12x  14 
adjoining  the  store,  designed  for  a  brewery,  and  of  which 
no  notice  was  given  to  the  company.  A  few  days  before 
the  fire  a  quantity  of  hay  was  placed  in  this  new  building, 
out  of  which  plaintiff's  cow  was  fed  up  to  the  time  of  the 
fire,  and  the  fire  itself  originated  in  this  building,  and 
when  first  discovered  was  all  over  the  hay.  Under  this 
state  of  facts  the  court  instructed  the  jury,  that  if  the  risk 
had  been  increased,  the  assured  could  not  recover;  and 
tho  jury  rendered  venlict  for  the  assured.  Held,  that  the 
instruction  of  the  court  was  correct,  but  the  verdict  of  the 
jury  clearly  against  the  evidence,  and  the  verdict  must  be 
set  aside.  Francis  v.  Sonierville  Mut.  Ins.  Co.  1  Dutch. 
N.  J.  78.     1855. 

§  16.  The  clause  respecting  increase  of  i-isk  contem- 
plates something  jternianent  or  habitual.  Leggett  v.  JEtna 
Ins.  Co.  10  Rich.  Law,  S.  C.  202.     1856. 

§  17.  The  underwriter,  in  entering  into  a  contract  of 
insurance  on  a  nieehanicjil  establishment,  can  be  presumed 
to  insure  only  against  risks  arising  from  the  usual  and  ap- 
propriate mode  of  carrying  on  such  business.  But  if  a 
new  invention,  not  in  common  use,  be  introduced,  material- 
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INCBEASE  OF  BISK. 


ly  increa^ine  the  risk,  without  the  consent  of  the  company,, 
it  may  avoid  the  policy.  Washington  County  Mut.  Ins. 
Co.  V.  Merchants' &  Manufacturers'  Mut.  Ins.  Co.  5  Ohio  St 
450.     1856. 

§  18.  Any  increase  of  risk,  incident  to  the  making  of 
reasonable  and  necessary  repairs,  is  part  of  the  general  risk 
assumed  by  the  insurers,  and  will  not  avoid  a  policy ;  and 
such  an  increase  of  risk  does  not  come  within  the  purview 
of  a  general  condition,  reciting  that  "  if,  after  insurance  ef- 
fected, the  risk  shall  be  increased  by  any  means  whatever 
within  the  control  of  assured,  such  insurance  shall  be  void 
and  of  no  effect."  Townseud  v.  Northwestern  Ins.  Co.  18 
K  Y.  168.    1858. 

§  19.  Policy  provided  that  if  the  risk  "  be  increased^ 
by  the  erection  of  buildings,  or  by  the  use  and  occupation 
of  neighboring  premises,  or  otherwise,  of  which  prompt 
"written  notice  shall  be  given  to  the  company  by  the  as- 
sured, or  if  for  any  other  cause  the  company  shall  so  elect, 
it  shall  be  optional  with  the  company  to  terminate  the  in- 
surance," &c.  The  risk  was  increased  during  continuance 
of  the  policy,  by  acts  of  third  parties,  but  no  notice  of 
same  given  to  the  company.  Hetd^  that  the  only  thing  re- 
quired by  the  condition  was  "  prompt  written  notice,"  and 
as  the  company  could  not  assume  that  they  would  have 
terminated  the  insurance,  had  notice  of  such  increase  of 
risk  been  given,  and  as  the  fire  was  not  caused  by  such  in- 
crease of  risk,  the  company  could  not  introduce  evidence  of 
such  increase  of  risk,  to  avoid  the  policy.  Joyce  v.  Maine 
Ins.  Co.  45  Me.  168.     1858. 

§  20.  A  policy  of  insurance  against  loss  by  fire  pro- 
vided, that  "  in  case  of  any  alteration,  <fec.,  to  the  building 
insured,  notice  thereof  should  be  given  to  the  secretary  or 
any  agent  of  the  company,  and  theii*  consent  obtained,  and 
that,  in  default  of  such  notice  and  consent,  the  policy  should 
be  void."  The  insured  subsequently  erected  a  steam  en- 
gine in  the  mill,  insured  as  a  water-power  mill.  Held^  1st, 
that  the  erection  of  such  engine,  and  proof  that  the  risk 
was  thereby  increased,  without  the  notice  or  consent  of  the 
insurers,  avoided  the  policy ;  2d,  that  notice  to  the  agent 
of  the  company  of  such  erection,  could  not  be  proved  by 


INCREASE  OF  RISK. 


339 


evidence  of  conversations  with  third  parties,  in  which  the 
erection  of  the  steam  engine  was  spoken  of;  3d,  that  knowl- 
edge of  the  fact  by  the  agent  did  not  affect  the  company 
with  knowledge,  though  notice  to  the  agent  would  do  so. 
Sykes  v.  Perry  County  Mut.  Fire  Ins.  Co.  34  Penn.  St.  79. 
1859. 

§21.  Where  policy  provided  that  notice  must  be  given 
in  writing  to  the  company,  and  their  consent  obtained,  to 
any  material  alteration  or  repairs  in  the  premises  insured, 
or  "  in  default  thereof  any  loss  happening  to  the  said  in- 
sured premises,  by  reason  of  making  said  repairs  or  altera- 
tions shall  not  be  paid  or  demanded  under  this  policy,"  and, 
under  such  policy,  there  was  a  total  destruction  of  the 
building,  whilst  repairs  were  being  made  by  the  tenant, 
unknown  to  assured,  who  had  never  notified  the  company 
of  the  same,  or  obtained  their  consent,  and,  it  having 
been  shown  upon  the  trial  that  the  loss  was  occasioned 
either  altogether  or  to  an  unknown  extent  by  such  unau- 
thorized alteration,  which  increased  the  risk ;  Held^  that 
the  loss  must  fall  on  the  assured,  unless  he  furnished  proof 
of  some  loss  occasioned  by  other  causes  than  such  altera- 
tion ;  that  the  burden  of  proof  was  on  him  and  not  on  the 
company.  Howell  v.  Baltimore  Equitable  Society,  16  Md. 
377.     1860. 

§  22.  Where  the  policy  provided  that "  any  alterations 
or  repairs  made  in  or  about  the  insured  property  must  be 
at  the  risk  of  the  party  insured ;"  Held^  that  alterations  or 
repairs  did  not  per  se  avoid  the  policy,  but  only  that  the 
assured  party  should  assume  the  hazard  of  their  increasing 
the  liability  of  the  insurer.  Girard  Fire  <fe  Marine  Ins.  Co. 
V.  Stephenson,  37  Penn.  St.  293.     1860. 

§  23.  In  an  action  to  recover  for  a  loss  by  fire  which 
originated  in  an  adjoining  carpenter  shop  (^belonging  to 
and  used  by  the  assured),  the  location  of  which  was  prop- 
erly given  in  the  application  for  the  insurance,  it  is'  not 
error  to  permit  the  juiy  to  decide  whether  stoves  are  cus- 
tomary and  necessary  in  a  carpenter  shop,  coupled  with  in- 
structions that,  if  not  necessary  and  customary,  the  assured 
could  not  recover.  Nor  is  it  error  in  such  a  case  for  the 
court  to  permit  the  juiy  to  decide,  whether  the  placing  of 


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INCREASE   OF  RISK. 


a  steam  engine  in  the  shop,  by  which  the  stoves  were  super- 
seded, had  increased  the  nazard  over  what  it  would  have 
been  from  the  stoves  alone,  with  the  instruction  that,  if  it 
had  done  so,  and  the  loss  was  the  result  of  the  change,  the 
plaintiff  must  fail ;  but  if  not,  the  loss  must  fall  on  the  com- 
panv,  even  though  the  fire  may  have  originated  from  the 
engme.  Girard  Fire  «fe  Marine  Ins.  Co.  v.  Stephenson,  37 
Penn.  St.  293.     1860. 

§  24.  An  increase  of  the  risk  after  an  insurance  is 
effected  by  means  within  the  control  of  the  assured  will, 
where  the  policy  contains  a  condition  to  that  effect,  avoid 
the  policy.  Dodge  County  Mut.  Ins.  Co.  v.  Kogers,  12  Wis. 
337.     1860. 

§  25.  Where  a  building  was  originally  constructed, 
and  several  times  used  for  the  puiyoses  of  an  exhibition 
of  industry  or  fair ;  and  the  defend!ants,  knowing  its  use, 
had  several  times  insured  its  owners  or  lessees  in  respect 
to  it,  and  the  plaintiffs,  subsequently  becoming  its  owners, 
procured  the  defendants  to  insure  them  in  respect  to  it ; 
Held,  that  the  plaintiffs  had  a  right,  after  obtaining  such 
insurance,  to  occupy  and  use  the  building  for  the  same  pur- 
poses ;  but  that,  if  it  was  used  otherwise  than  as  a  mere 
place  of  exhibition,  or  was  so  occupied  or  used  as  to  render 
the  hazard  greater  at  the  time  of  the  fire  than  when  the  in- 
surance was  effected,  the  plaintiffs  were  not  entitled  to 
recover  thereon.  Mayor,  <fec.  of  New  York  v.  Exchange 
Fire  Ins.  Co.  9  Bosw.  N.  Y.  424.     1862. 

§  26.  A  policy  of  insurance  upon  personal  property 
contained  a  condition  that  if  the  building  in  which  it  was 
kept  should  be  used  for  the  purpose  of  storing  any  of  the 
articles  denominated  "  hazardous,"  except  as  specially 
agreed  to  by  the  company,  and  indorsed  on  the  policy,  the 
insurance  should  be  void.  The  policy  contained  a  schedule 
of  articles  denominated  "hazardous,"  among  which  was 
"  wine  in  casks,"  the  same  being  placed  under  the  head  of 
articles  considered  hazardous  on  account  of  their  liability 
to  damage,  but  for  which  the  rate  on  the  building  was  not 
to  be  increased.  Held,  that  a  reasonable  construction  of 
this  condition  would  make  it  apply  only  to  the  class  of 
hazardous  articles  by  which  the  risk  to  the  building  was 


INCREASE  OF  RISK. 


341 


increased ;  and  that  the  policy  was  not  vitiated  by  reason 
of  the  storage  of  wine  in  casks.  Rathbone  v.  City  Fire 
Ins.  Co.  31  Conn.  193.     1862. 

§  27.  Where  a  policy  of  insurance  specifies  the  uses 
to  which  the  premises  are  applied,  a  mere  increase  of  risk 
does  not  avoid  the  policy,  unless  it  arises  from  something 
else  than  their  appropriation  to  the  uses  which  are  con- 
templated and  covered  by  the  policy.  Mayor,  <fec.  of  New 
York  v.  Hamilton  Fire  Ins.  Co.  10  Bosw.  N.  Y.  537. 
1863. 

§  28.  "When  the  plaintiffs  procured  a  policy  on  their 
merchandise  in  their  storehouse,  and  another  on  their  fac- 
tory ;  and  the  former  contained  a  provision  that  ''  if  the 
risk  be  increased  by  any  means  whatever  within  the  con- 
trol of  the  assured,"  it  should  be  void,  but  no  limitation  as 
to  the  time  the  plaintiffs  were  to  run  their  factory,  but 
such  limitation  was  contained  in  the  latter;  and,  subse- 
quently, such  limitation  was  removed  by  the  written  per- 
mit of  the  defendants  in  consideration  of  an  additional 
premium ;  Hdd^  that  the  policies  were  distinct  and  inde- 
pendent; and  the  removing  of  the  limitation  was  not  an 
"  increase  of  the  risk,"  within  the  meaning  of  the  former 
policy.  North  Berwick  Co.  v.  New  England  Fire  &  Ma- 
rine Ins.  Co.  52  Me.  336.    1864. 

§  29.  If  a  policy  of  insurance,  issued  by  a  mutual 
fire  insurance  company,  contains  a  stipulation  that  "  if 
subsequent  to  the  making  of  the  application,  any  new  fact 
shall  exist,  either  by  a  change  of  any  fact  disclosed  in  the 
application,  the  erection  or  alteration  of  any  building," 
cvc,  "  by  the  assured  or  others,  or  any  change  be  made 
not  named  in  the  application,  and  specifically  permitted 
by  the  policy,  the  policy  thereon  shall  be  void,  unless 
written  notice  be  given  to  the  directors,  their  written  con- 
sent, signed  by  the  secretary,  obtained,  and  an  additional 
premium  or  deposit  paid,"  the  policy  will  be  avoided  by 
the  erection  or  alteration  of  a  building  upon  the  premises, 
without  obtaining  a  written  consent,  signed  by  the  secre- 
tary, or  paying  any  additional  premium  or  deposit. 
Evans  v.  Tri-mountain  Mut.  Fire  Ins.  Co.  9  Allen,  Mass, 
329.     1864. 


1    I   j  3 


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INCREASE   OF   RISK. 


§  30.  A  policy  of  insurance  which  is  issued  upon  a 
dwelling-house  in  consequence  of  an  express  oral  promise, 
by  the  applicant,  that  it  shall  be  occupied,  will  not  be 
avoided  by  the  failure  to  fulfil  such  promise,  unless  fraud 
is  proved;  even  though  the  risk  is  thereby  increased. 
Kimball  v.  ^tna  Ins.  Co.  9  Allen,  Mass.  540.     1865. 

§  31.  Where  an  insurance  was  "  on  barley  and  malt 
in  assured's  malt-house  and  breweiy,"  and  a  condition  was 
that  the  risk  should  not  be  increased  without  notice  to  the 
company  and  endorsement  on  the  policy,  the  fact  that  the 
assured  carried  on  distilling  in  the  building  is  fatal  to  the 
claim  of  the  assured  for  loss,  unless  the  company  had 
notice  of  the  distilling  before  the  insurance.  People's  Ins. 
Co.  v.  Spencer,  58  Penn.  St.  353.     1866. 

§  32.  If  after  an  insurance  is  effected  upon  goods  in  a 
specified  building,  the  insured  rent  a  part  of  the  building 
to  other  persons,  who  apply  the  same  to  purposes  prohib- 
ited by  the  policy  as  being  hazardous  or  extra  hazardous, 
this  will  avoid  the  policy,  although  the  goods  insured  are 
not  in  that  part  of  the  building  so  let.  Appleby  v.  Fire- 
men's Fund  Ins.  Co.  45  Barb.  N.  Y.  454.     1866. 

§  33.  Where  a  policy  is  for  a  year,  and  is  renewed  and 
then  is  substituted  by  a  new  policy,  and  the  assumption  of 
an  additional  risk  by  endorsement  on  such  policy,  notice 
of  an  increased  risk  given  before  the  renewal  of  the  origi- 
nal policy  runs  through  all  subsequent  insurances.  Peo- 
ple's Ins.  Co.  V.  Spencer,  53  Penn.  St.  353.     1866. 

§  34.  When  alterations  and  additions  to  a  building 
materially  increase  the  risk,  so  that  the  insurer  would  be 
entitled  to  a  higher  rate  of  premium,  the  policy  will  be 
treated  as  absolutely  void  if  the  insured  fail  to  give  notice 
as  required  by  the  terms  of  the  policy.  Kern  v.  South 
St.  Louis  Mut.  Ins.  Co.  40  Mo.  19.     1867. 

* 

§  35.  Premises  used  as  a  store  when  ins'ire^'  were 
subsequently  used  as  a  printing  office,  whicl  proved 

to  be  treated  by  insurance  companies  as  mc.  Hazardous 
than  stores.  Held^  the  condition  against  chaii  -  c  of  •  ccu- 
pancy  increasing  the  risk  being  broken,  the  policy  is  void. 
Hervey  v.  Mut.  Fire  Ins.  Co.  of  Prescott,  11  U.  C,  C.  P. 
394.     1862. 


INCREASE   OF   RISK. 


343 


§  36.  Clause  against  putting  in  any  additional  fur- 
nace, stove,  &c.,  is  not  broken  by  assured's  making  addi- 
tions to  the  building  and  putting  a  furnace  in  the  addition. 

Under  a  clause  against  increasing  the  risk,  the  as- 
sured made  alterations  and  additions  and  removed  a  fur- 
nace from  the  original  building  to  the  addition.  The  jury 
found  the  external  risk  was  increased  and  the  internal 
risk  diminished,  and  on  the  whole  risk  was  diminished. 
Jleld,  the  plaintiff  could  not  recover.  Lomas  v.  British 
America  Ass.  Co.  22  U.  C,  Q.  B.  318.     18G3. 

§  37.  The  jury  having  found  that  by  the  erection  of 
neighboring  buildings  and  the  removal  of  the  steam  en- 
gine, tfec,  to  them  from  the  insured  premises,  the  external 
risk  was  increased  and  the  internal  diminished ;  Held,  the 
policy  was  avoided,  thou^^h  on  the  whole  the  risk  might 
have  been  diminished.  Heneker  v.  Brit.  Am.  Ass.  Co.  13 
U.  C,  C.  P.  99.     1863. 

§  38.  Condition  against  increase  of  risk  within  the 
control  of  the  assured.  Additions  made  by  a  lessee  of  the 
assured  increasing  the  risk  are  not  within  the  control  of 
the  lessor,  although  he  might  have  a  right  of  entry  for  a 
forfeiture  therefor,  for  he  never  bound  himself  to  tne  com- 
pany to  enter  for  the  forfeiture,  and  even  if  he  did  so  the 
insurance  by  that  argument  would  have  been  lost  already. 
The  provision  in  the  lease  that  lessees  should  not  alter  tne 
arrangements  of  the  mill  is  no  prohibition  to  making  addi- 
tional buildings.  Heneker  v.  J3rit.  Am.  Ass.  Co.  14  U.  C, 
C.  P.  57.     1864. 

§  39.  A  condition  avoided  the  policy  if  the  risk  should 
be  increased  by  any  means  whatever.  Certain  alterations 
were  made  after  insurance  by  removing  two  dye  kettles 
to  another  room,  by  a  dliferent  disposition  of  flues 
and  pipes,  and  erecting  a  chimney,  thereby  slightly  in- 
creasing the  risk  considering  it  as  an  isolated  act,  but 
greatly  diminishing  the  risk  on  the  whole.  Held,  the  ver- 
ict  for  the  plaintiff  should  not  be  disturbed.  Diate  v. 
Gore  Dist.  Mut.  Ins.  Co.  15  U.  C,  C.  P.  175.     1865. 

§  40.  A  policy  was  to  take  effect  only  on  actual  pay- 
ment of  the  premium.  Premium  was  paid  in  Jan.,  1862, 
.on  the  day  of  the  delivery  of  the  policy.    Held,  the  insur- 


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344 


INCREASE  OP  RISK. 


ance  was  not  effected  until  that  date,  and  an  alteration 
made  before  that  date,  though  after  the  date  of  the  policy 
whose  retroactive  effect  was  only  for  the  purpose  of  com- 
puting the  time  when  it  would  expire,  was  not  an  increase 
of  risk  after  the  making  of  the  policy.  Fourdrinier  v. 
Hartford  Fire  Ins.  Co.  15  U.  C,  C.  P.  403.     1865. 

§  41.  Per  Hare,  J.  That  two  adjoining  stores  in- 
sured under  different  policies  being  thrown  into  one  by 
making  an  archway  in  the  walls,  is  presumptively  an  in- 
crease of  the  risk.  Denkla  v.  Ins.  Oo.  6  Phila.  Hep.  233. 
1867. 

§  42.  Clause  that  the  insurance  shall  be  void  if  "  the 
risk  be  increased  by  any  means,  or  occupied  in  any  way  so 
as  to  render  the  risk  more  hazardous  than  at  the  time  of 
insuring."  Held,  the  policy  becomes  inoperative  only 
while  the  increased  risk  is  in  existence,  recommencing  aft- 
erwards. And  under  such  a  clause  it  is  not  competent 
to  prove  that  the  risk  is  increased  by  the  increase  of  the 
number  of  fires ;  but  the  real  question  is,  was  the  risk  at 
the  time  of  loss  greater  in  consequence  of  the  presence  of 
stoves  in  which  fire  had  been  used  at  periods  more  or 
loss  remote  from  the  time  of  loss,  which  were  not  in  the 
building  at  the  issue  of  the  policy,  placed  as  the  stoves 
were  and  used  in  the  manner  proved.  Schmidt  v.  Peoria 
M.  «fe  F.  Ins.  Co.  41  111.  295.     1867. 

§  43.  In  the  absence  of  express  provision,  repairs  or 
or  additions  or  erecting  further  buildings,  causing  a  mate- 
rial increase  of  risk,  will  not  prevent  a  recovery  unless  the 
loss  is  ca.iSed  by  such  increase.  Washington  Ins.  Co.  v. 
Davison,  30  Md.  91.     1868. 

§  44.  A  clause  avoir! 'iig  the  policy  for  any  change 
material  to  the  risk  within  the  control  of  assured,  was  hetdy 
not  to  refer  to  erection  of  buildings  on  the  premises,  but 
rather  to  police  regulations  against  accidents,  since  there 
was  another  clause  giving  the  company  an  option  to  ter- 
minate the  risk  in  case  ot  erection  of  buildings.  Commer- 
cial Ins.  Co.  V.  Mehlman,  48  111.  313.     1868. 

§  45.  Where  on  an  increase  of  risk  the  agent  agreed 
to  continue  the  policy  on  condition  an  iron  door  were  put 


mCBEASE   01*  BISK. 


345 


* 


in,  but  without  limiting  any  time  for  doing  it,  this  is  not 
a  condition  precedent,  and  the  assured  has  a  reasonable 
time,  and  if  he  has  used  all  reasonable  efforts  to  comply 
before  the  fire  there  is  no  breach  of  the  condition.  Viele 
V.  Germania  Ins.  Co.  26  Iowa,  9.     1868. 

§  46.  In  procuring  insurance  the  assured  was  told  by 
the  agent,  that  if  an  elevator  was  erected  on  the  premises 
his  policy  would  be  avoided  by  a  clause  of  avoidance  for 
increase  of  risk  and  requirement  of  additional  premium, 
but  no  insertion  was  made  in  the  policy  as  to  the  elevator ; 
the  assured  having  erected  an  elevator,  and  on  a  loss  the 
jury,  not  having  found  any  increase  of  risk.  Held,  the  facts 
afforded  no  defense.  Todd  v.  Liverpool,  London  &  Globe 
Ins.  Co.  18  U.  C,  C.  P.  192.     1868. 

§  47.  Policy  to  be  void  "  in  case  any  alteration  '* 
should  be  made  in  and  to  the  risk,  wheli.er  hj  the  ^ 
or  change  in  the  nature  of  the  occupation,  or  in  any  other 
manner  by  which  the  degree  of  risk  is  increased."  A  mere 
temporary  introduction  of  painters  and  carpenters  for  nec- 
essary and  reasonable  repairs,  «fec.,  would  not  avoid  the 
policy. 

That  a  clause  against  change  in  tJie  nature  of  the  occu- 
pation, and  a  plea  under  it  of  change  in  the  occupation, 
whether  one  means  the  person  occupying  and  the  oth^r 
his  iiuinner  of  occupancy,  or  not,  will  not  make  the 
plea  bad.  Ottawa  Forwarding  Co.  v.  Liverpool  &  Lon- 
don «fe  Globe  Ins.  Co.  28  U.  C,  Q.  B,  518.     1869. 

§  48.  Insurance  on  dwelling;  the  assured  erected  on 
adjoining  lot  a  factory,  increasing  the  risk.  Policy  had 
two  claused :  one  avoiding  it  "  if  tlie  circumstances  of  the 
risk  are  changed  with  the  advice,  consent  or  agency  of  as- 
sured so  as  to  increase  the  risk ; "  the  other,  "  if  the  risk 
be  increased  by  erection  of  buildings  or  use  of  neighbor- 
ing premises,  the  company  have  the  option  of  terminating 
the  insurance  after  notice."  The  company  gave  no  notice, 
but,  Held,  the  policy  was  avoided  under  the  first  clause. 
The  first  clause  referred  to  any  increase  of  risk  by  the  con- 
sent of  assured,  and  the  second  to  any  increase  without 
liis  consent.  Allen  v.  Massasoit  Ins.  Co.  99  IMass.  160. 
1868. 


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346 


INCEEASE  OF  RISK. 


§  49.     Kepairs  increasing  the  hazard  only  suspend  the 

Solicies  during  such  increase.     Ins.  Co.  of  North  Am.  v. 
LcDowell,  50  111.  120.     1869. 

§  50.  Though  material  facts  tending  to  increase  the 
hazard  must  be  disclosed,  the  assured  is  not  bound  to  in- 
quire whether  he  is  popular  or  unpopular  in  the  neigh- 
borhood, and  the  company  is  supposed  to  know  that  a 
Northern  man,  in  the  then  unsettled  condition  of  the 
South,  was  obnoxious  in  the  locality. 

And  the  assured's  failure  to  state  that  the  guard  had 
a  fire  in  the  winter  or  smoked  pipes,  is  not  evidence  of 
bad  faith.     Keith  v.  Globe  Ins.  Co.  52  111.  518.     1869. 

§  51.  The  provision  in  a  policy  against  increase  of 
risk  by  the  acts  of  the  insured,  is  an  independent  condi- 
tion, and  not  to  be  controlled  bv  the  specification  of  haz- 
ards, and  the  assured,  in  increasmg  the  risk  by  storage  of 
loose  hay,  avoids  the  policy,  although  unbaled  hay  is  not 
specially  excepted  as  hazardous.  Dittmer  v.  Germania 
Ins.  Co  23  La.  An.  458.     1871. 

§  52.  Carpenter's  work  in  the  building  insured  was  de- 
nominated as  hazardous.  Carpenter's  work  was  being  done 
on  the  adjoining  tenement,  and  the  agent  charged  an  extra 
premium  for  the  increase  of  hazard,  the  policy  saying 
nothing  on  the  subject.  Held^  1st.  The  obnoxious  trade 
was  not  "  in  the  building  insured ; "  2d.  The  knowledge  of 
the  agent  and  his  charging  extra  premium  binds  the  com- 
pany. Southern  Ins.  <fe  xrust  Co.  v.  Lewis  &  Bros.  42  Ga. 
587.     1871. 

See  Agent,  §  75.  Alteration,  1,  3,  3,  4,  7,  8.  Burden  of  PrAof,  8,  9.  By- 
Laws  and  Conditions,  8,  11.  Description  of  Propertj',  10,  25.  Evidence,  4. 
Other  Insurance,  61.  Parol  Evidence,  14,  Pleading  and  Practice,  18,  10,  52. 
Questions  for  Court  and  Jury,  4,  7.  Responsibility  of  Assignee  for  Acts  of 
Assignor,  19.  Responsibility  of  Assured  for  Acts  of  Others,  2,  4.  Risk,  48. 
Use  and  Occupation,  6, 10,  30,  33,  43,  44,, 47,  57,  04,  66.  Warranty  and  Rep- 
resentation, 1, 2,  6,  20,  29. 


INSOLVENCY. 

§  1.  Creditor  has  no  preference  because  he  loaned 
money  to  company  to  pay  a  loss  piior  to  the  great  fire. 
No  cred'  tor  is  entitled  to  preferences  unless  he  has  legal  or 
equitable  lien,  or  specific  appropriation  of  some  particular 
part  of  corporate  property  or  funds.  Creditors  not  lim- 
ited to  amount  of  capital  stock  at  time  of  losses.  Premiums 
noi  capital  stock,  are  the  primary  fund  for  payment  of 
lo  "...  1,  and  to  be  first  exhausted.  De  Peyster  v.  American 
Fire  Ins.  Co.  6  Paige,  N.  Y.  486.     1837. 

§  2.  Creditors  of  insolvent  company,  on  bill  to  close 
up,  to  be  paid  ratably,  without  reference  to  time  of  matu- 
rity of  debts.  Creditor  for  loss  before  the  creat  fire,  which 
made  the  company  insolvent,  not  entitled  to  any  prece- 
dence of  payment.  Lowene  v.  American  Fire  Ins.  Co.  6 
Paige,  N.  Y.  482.     1837. 

§  3.  B.  assigned  policy  to  mortgagees ;  then  borrowed 
of  insurance  compaay  money  for  which  he  mortgaged  other 
property ;  then,  the  company  becoming  insolvent  by  the 
great  fire,  he  delivered  up  the  policies  and  took  certificate 
of  amount  of  loss,  which  he  assigned  to  his  mortgagees. 
Ilehl,  that  he  could  not  set  oft'  these  certificates  against  his 
indebtedness  for  the  loan,  but  must  share  with  the  other 
creditors  pro  rata.  Swords  v.  Blake,  3  Edw.  Ch.  N.  Y. 
112.     1838. 

§  4.  The  charter  of  the  Commercial  Insurance  Com- 
pany of  New  York  provided  that  the  stockholders  should 
be  individually  liable  for  the  company's  debts.  A  subse- 
quent New  Yo;k  statute  provided  that  insolvent  insurance 
companies  might  make  an  assignment,  and  in  that  case  the 
creditors  should  have  a  remedy  under  the  assignment  only. 
The  Commercial  Insurance  Company  becoming  insolvent, 
made  an  assignment,  and  certain  creditors,  after  receiving 
dividends  under  the  assignment,  brought  a  bill  to  charge 
the  stockholders  individually.  Held,  that  although  the 
last  named  statute  was  void  as  to  them,  yet  as  they  had 
taken  the  benefit  of  it  by  accepting  dividends,  they  must 


1 


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INSOLVENCY. 


be  regarded  as  assenting  to  it,  and  were  bound  by  its  pro- 
visions ;  and  the  bill  was  dismissed.  Van  Hook  v.  Whit- 
lock,  26  Wend.  N.  Y.  43.    1841. 

§  5.  The  mere  fact  of  the  insolvency  of  an  insurance 
company  at  the  time  of  issuing  the  policy  to  assured,  does 
not  authorize  him  to  repudiate  it  as  a  contract,  and  claim 
an  exemption  from  liability  to  pay  the  premium.  There 
must  have  been  an  actual  fraud  practiced  upon  him  by 
which  he  was  deceived.  Clark  v.  Middleton,  19  Mo.  53, 
1853. 

§  6.  The  issuing  of  a  policy  of  insurance  by  an  insolv- 
ent insurance  company  is  a  good  consideration  for  a  prom- 
issory note  given  for  the  premium,  if  the  insolvency  of 
the  company  was  not  known  by  its  officers  or  agents  at 
the  time.    Lester  v.  Webb,  5  Allen,  Mass.  569.     1863. 

§  7.  A  policy  which  provides  that  the  stock  and 
funds  of  the  company  issuing  it  shall  be  subject  and  liable 
to  pay  the  sum  assured,  does  not  create  a  charge  upon  the 
stock  and  funds  of  the  company  so  as  to  give  a  policy 
holder  a  preference  over  general  creditors  of  the  company. 
Matter  of  the  State  Fire  Ins.  Co.  1  De  Gex,  J.  &  F. 
Eng.  Ch.  634.     1863. 

§  8.  Receivers  having  been  appointed  and  the  com- 
pany enjoined  from  doing  further  business  except  to  choose 
officers  and  do  other  acts  necessary  to  continue  it  until  final- 
ly closed ;  the  president,  though  he  was  to  receive  a  named 
annual  salary,  is  only  entitled  to  an  apportionment,  his 
office  being  suspended  by  legal  authority.  Commonwealth 
V.  Eagle  Fire  Ins.  Co.  14  Allen,  344.     1867. 

See  Receivers ;  also  Dividends,  §  4.    Insurance  Co.'s,  10.  Mutual  Co.'s,  and 
Members,  1.   Premium  Notes,  8,  28.   Successive  Losses,  2. 


INSURABLE  INTEREST. 

§  1.  To  recover,  the  insured  must  have  had  an  inter- 
est at  the  time  of  procuring  insurance,  and  at  the  time  of 
loss.  H  this  case  the  insured  took  policy  for  seven  years 
on  a  leasehold  interest,  which  expired  before  the  end  of 
the  seven  years,  and  the  fire  occurred  after  the  term  of  the 
lease  was  up,  and,  afterwards,  the  insured  assigned  the 
policy.  Held,  that  insured  had  no  interest  at  the  time  of 
the  fire,  and  that  plaintiff  could  not  recover.  Sadlers  Co. 
V.  Badcock,  1  Wilson,  10.  1743.  s.  c.  2  Atkyn's,  534. 
1743. 

§  2.  Assured  was  in  possession  of  the  insured  prop- 
erty under  a  contract  of  purchase,  had  made  a  payment  of 
interest  in  pursuance  thereof,  and  had  made  valuable  im- 
provements, but  the  fee  of  the  premises  was  in  another. 
Heldy  that  assured  had  an  insurable  interest  in  the  prem- 
ises. McGivney  v.  Phoenix  Ins.  Co.  1  Wend.  N.  Y.  85. 
1828. 

§  3.  A  factor,  who  has  the  goods  of  his  principal  in 
his  possession,  for  sale  on  commission,  has  an  insurable  in- 
terest in  them,  to  the  full  extent  of  their  value,  and  may 
insure  them  in  his  own  name,  and  recover  the  amount 
payable  for  the  loss,  on  an  averment  of  interest  in  himself. 
De  Forest  v.  Fulton  Fire  Ins.  Co.  1  Hall,  N.  Y.  84.     1828. 

§  4.  Any  interest  held  under  an  executory  contract, 
and  while  such  contract  subsists,  is  an  insurable  interest. 
Columbian  Ins.  Co.  v.  Lawrence,  2  Pet.  U.  S.  25.     1829. 

§  5.  A  party  whose  premises  are  subject  to  mortgage 
and  other  liens,  has  an  insurable  interest,  and  such  inter- 
est is  not  divested  by  a  sale  of  the  equity  of  redemption, 
under  execution,  but  continues  luitil  his  rijxht  to  redeem 
expires.  Strong  v.  Manufacturers'  Ins.  Co.  10  Pick.  Mass. 
40.     1830. 

§  6.  One  in  possession  of  a  house  under  an  executory 
contract,  on  which  he  has  made  a  partial  payment,  has  an 
insurable  interest,  and  may  insure  it  as  his  property  with- 


1ii 


. ;  :■,  1  5J 


350 


INSURABLE  INTEREST. 


out  stating  the  particular  interest  he  has  in  the  premises, 
unless  specially  inquired  of  by  the  insurer.  In  such  case 
a  failure  to  state  the  nature  of  the  interest  to  be  insured 
is  not  such  a  misrepresentation  or  breach  of  warranty  as 
to  avoid  the  policy.  The  insured  has  an  insurable  inter- 
est to  the  full  value  of  the  house  described  in  the  policy, 
and  that  the  liability  of  the  undenvriters  to  him  is  neither 
diminished  nor  impaired  by  a  previous  policy,  which  the 
vendor  had  obtained  in  another  company.  Tyler  v.  ^tna 
Ins.  Co.  16  Wend.  N.  Y.  385.  1836.  Tyler  v.  ^tnalns. 
Co.  12  Wend.  N.  Y.  507.     1834. 

§  7.  Policy  to  secure  payment  of  promissory  note, 
guaranteeing  payment  of  $5,000,  at  a  day  fixed  to  bearer, 
on  presentment  at  the  office  of  the  company.  Held^  that 
the  contract  was  valid,  and  that  the  bearer  might  sue  on 
it,  as  on  a  promissory  note.  EUicott  v.  United  States  Ins. 
Co.  8  Gill  &  Johns.  JVId.  166.     1840. 

§  8.  Under  the  code  in  Louisiana,  the  husband  has 
such  an  interest  and  right  in  the  personal  property  belong- 
ing to  his  wife,  as  authorizes  him  to  insure  it  even  in  his 
own  name,  and  without  declaring  the  nature  and  extent 
of  his  interest.  Clark  v.  Firemen's  Ins.  Co.  18  La.  431. 
1841. 

§  9.  A  husband,  who  is  tenant  by  the  curtesy,  and 
has  had  issue  born  to  him,  has  an  insurable  interest  in  the 
property  of  his  wife,  and  may  recover  the  whole  amount 
of  loss,  not  exceeding  the  amount  insured.  Insurance  Co. 
V.  Drake,  2  B.  Monroe,  Ky.  47.     1841. 

§  10.  The  bare  possibility  that  a  right  to  property 
might  hereafter  arise,  cannot  be  considered  as  an  insui'able 
interest.  Macarty  v.  Commercial  Ins.  Co.  17  La.  365. 
1841. 

§  14.  Where  the  goods  of  the  insured  were  levied  on 
by  the  sheriff  by  virtue  of  an  execution,  and  the  sheriff 
took  actual  possession  of  the  goods  and  left  them  in  the 
store  of  assured,  with  doors  and  windows  fastened  up,  and 
then  went  out  of  town,  taking  the  key  of  the  store  with 
him,  and  during  his  al)8ence  a  fire  occurred,  totally 
destroying  them ;  hdd^  that  the  insured  still  had  an  in- 


INSURABLE  INTEREST. 


351 


surable  interest  in  the  goods  to  their  full  value,  and  was 
entitled  to  recover.  Franklin  Ins.  Co.  v.  Findlay,  6  Whart. 
Pa.  483.     1841. 

§  12.     A  mortgagee  may  insure  his  interest,  under  the  / 
charter  and  statute  of  incorporation  of  the  Kentucky  and  / 
Louisville  Insurance  Company.     Addison  v.  Louisville  i 
Ins.  Co.  7  B.  Monroe,  Ky.  470.     1847. 

§  13.     A  tenant  for  a  year  may  insure  his  interest  in 
the  demised  tenement,  but  is  not  entitled  to  recover  the  / 
value  of  the  building,  but  only  the  value  of  his  lease,  f 
Niblo  V.  North  American  Ins.  Co.  1  Sandf.  N.  Y.  551. 

1848. 

§  14.  Profits  may  be  insured,  but  they  must  be  in- 
sured as  such.  Niblo  v.  North  American  Ins.  Co.  1  Sandf. 
N.  Y.  551.     1848. 

§  15.  Where  the  wife  had  an  estate  for  years  in  land, 
and  her  husband  erected  a  house  upon  it ;  Held,  that  he 
had  an  insurable  interest  in  such  house.  Abbott  v.  Hamp- 
den Mut.  Ins.  Co.  30  Me.  414.     1849. 

§  16.     One  partner  has  an  insurable  interest,  to  the   i 
extent  of  his  interest  in  the  partnership,  in  a  building  / 
purchased  with  partnership  funds,  and  moved  on  to  land  / 
owned  by  the  other  partner.     Converse  v.  Citizens'  Mut. 
Ins.  Co.  10  Cush.  Mass.  37.     1852. 

§  17.  A  mortgagee  has  an  insurable  interest  in  the 
property  mortgaged.  Kellar  v.  Merchants'  Ins.  Co.  7  La. 
An.  29.     1852. 

§  18.  An  insolvent  obtained  his  discharge  under  Act 
1  and  2  Vict.  C  1105,  37,  and  afterwards  acquired  prop- 
erty which  he  insured,  and  afterwards  the  discharge  was 
revoked.  Held,  that  he  had  an  insurable  interest,  being 
in  possession  as  apparent  owner,  and  responsible  to  the 
real  owners.  Marks  v.  Hamilton,  7  Wels.  Hurl.  &  Gord. 
(Exch.)  323.     1852. 

§  19.  A  stockholder  and  creditor  of  an  unincorporated 
company,  which  erected  a  house  on  land  of  the  State,  with- 
out license  or  shadow  of  title  from  the  State,  though  in 
possession,  and  claiming  under  a  transfer  from  most  of  the 


if   !lE 


'  V' 


352 


IN9UEABLE  INTEREST. 


stockholders  to  creditors,  of  whom  he  was  the  principal 
one,  has  not  an  insurable  interest  in  such  building. 
Sweeney  v.  Franklin  Ins.  Co.  20  Penn.  St.  337.     1853. 

§  20.  A  mechanic  has  an  insurable  interest  in  work 
already  done  upon  a  house  at  the  time  the  insurance  is 
effected,  payment  for  which  is  to  be  made  upon  completion 
of  the  house.  Protection  Ins.  Co.  v.  Hall,  15  B.  Monroe, 
Ky.  411.     1854. 

§  21.  Where  owner  of  personal  property  mortgaged 
the  same,  and  in  pursuance  of  an  agreement  with  mort- 
gagee insured  the  property ;  Held,  1st,  that  there  being  no 
evidence  that  payment  had  been  demanded  and  the  mort- 
gagee's title  become  absolute,  the  mortgagor  had  an  in- 
surable interest ;  and,  2d,  that  if  payment  had  been  de- 
manded the  mortgagor  would  still  have  had  an  equity  of 
redemption,  which  would  have  been  sufficient  to  constitute 
an  insurable  interest.  Allen  v.  Franklin  Fire  Ins.  Co.  9 
How.  N.  Y.  501.     1854. 

§  22.     An  agent  or  consignee,  having  the  principal's 
property  in  his  possession,  being  responsible  for  it,  and 
/having  a  special  interest  in  it  to  the  amount  of  his  com- 
/  missions,  may  insure  it  in  his  own  name,  and,  in  case  of 
*  loss,  recover  the  full  amount  of  the  policy,  holding  all  be- 
yond his  own  interest  in  trust  for  his  principals,     ^tna 
Ins.  Co.  V.  Jackson,  16  B.  Monroe,  Ky.  242.     1855. 

§  23.  Under  statute  providing  that  a  railroad  com- 
pany should  have  an  insurable  interest  in  any  building  or 
other  property  along  the  line  of  the  road,  for  the  loss  of 
which  by  fire  communicated  by  the  engine,  it  was  respons- 
ible in  damages ;  Held,  that  the  company  had  an  insur- 
able interest  in  growing  timber  three  hundred  feet  from 
the  line  of  the  road.  Pratt,  v.  Atlantic  &  St.  Lawrence 
Kaili«oad,  42  Me.  579.  1856.  See  also  Hookset  v.  Con- 
cord Railroad,  38  N.  H.  242.  1859.  Hart  v.  Western 
Railroad,  13  Met.  Mass.  99.  1847.  Chapman  v.  Atlantic 
&  St.  Lawrence  Railroad,  37  Me.  92.     1854. 

§  24.  The  interest  one  acquires  in  a  house  and  lot 
purchased  at  an  execution  sale,  though  no  money  be  paid, 
or  deed  received,  is  insurable,  if  the  nature  of  the  interest 


j^ 


INSURABLE    IlHiEEEST. 


353 


has  been  fully  disclosed  to  tbe  agent  of  the  insurer  before 
policy  was  issued,  although  after  the  loss  the  property 
may  have  been  resold  and  bought  by  other  parties  in 
consequence  of  non-payment  by  the  assured  who  was 
first  purchaser,  -^tna  Ins.  Co.  v.  Miers,  5  Sneed,  Tenn. 
139.     1857. 

§  25.  Assured  sold  a  piece  of  property  to  another, 
and,  as  collateral  security  for  the  payment  of  $3,500,  the 
purchase  money,  received  from  him  one  bond  for  $5,000, 
another  bond  for  $4,000,  and  a  mortgage  on  a  fulling 
manufactory  for  $4,112,  all  of  which  were  duly  assigned 
to  assured,  who  then  effected  insurance  to  the  amount  of 
$2,000  on  the  fulling  manufactory  in  defendant's  com- 
pany. Held,  that  the  assured  had  a  certain  definite  in- 
terest in  the  property  insured,  susceptible  of  being 
affected  by  loss  by  fire,  and  therefore  insurable.  Sus- 
sex County  Mut.  Fire  Ins.  Co.  v.  Woodruff,  2  Dutch.  N. 
J.  541.     1857. 

§  26.  Where  a  mortgage  was  given  to  secure  such 
sum  as  the  mortgagee  shall  hereafter  advance  "  towards 
completing  the  buildings,"  and  advances  were  repaid,  and 
afterwards  other  advances  made  ;  Held,  that  there  was  a 
subsisting  liability,  and  that  the  mortgagee  might  recover 
on  the  policy  of  insurance.  Rex  v.  Insurance  Co.  1  Phila-' 
delphia.  Pa.  357.     1858. 

§  27.  A.  effected  insurance  on  a  vessel  in  the  defend- 
ant's company,  and  assigned  policy  to  the  plaintiffs,  who 
held  a  mortgage  on  the  vessel,  for  $16,000,  the  assignment 
being  consented  to  by  tlie  company.  Subsequently,  he 
gave  to  C.  a  mortgage  for  $25,000  on  the  same  vessel, 
with  a  power  to  sell,  on  forfeiture  of  the  condition  in  the 
mortgage.  Afterwards,  upon  forfeiture  of  said  condition, 
C.  sold  the  vessel  at  public  auction,  and  himself  became 
the  purchaser.  In  an  action  on  the  assigned  policy  by 
the  first  mortgagees,  or  plaintiffs ;  Held,  1st,  that  as  C. 
had  no  power  to  sell  to  himself  without  statutory  aid, 
and  the  pretended  sale,  therefore,  gave  him  no  new  title, 
but  left  him  mortgagee  still,  A.  holding  the  equity  of  re- 
demption still  had  an  insurable  interest ;  and,  2d,  that  if 
the  foreclosure  of  the  second  mortgage,  had  divested  him 

23 


''ii. 


;-if 


ii 


■j,    'ri 


i|!  ■; 


354 


INSURABLE    INTEREST. 


\^ 


of  the  equity  of  redemption,  lie  still  had  an  insurable  in- 
terest left,  in  respect  to  the  first  mortgage  for  which  he 
was  personally  holden,  and  was,  therefore,  interested  in 
the  application  of  the  insurance  money  towards  payment 
of  that  debt.  Buffalo  Steam  Engine  Works  v.  Sun  Mut. 
Ins.  Co.  17  N.  Y.  401.     1858. 

§  28.  Where  the  assured  had  contracted  to  purchase 
the  property  insured,  and  had  failed  to  make  his  pay- 
ment punctually,  but  was  proceeding  in  equity  to  compel 
performance  by  the  vendor  who  had  resold  the  property 
to  another  party,  the  assured,  however,  remaming  in 
possession  ;  HeM,  that  he  had  an  insurable  interest.  Mil- 
ligan  V.  Equitable  Ins.  Co.  16  Upper  Canada,  Q.  B.  314. 
1858. 

§  29.  A  husband  has  an  insurable  interest  in  goods 
settled  to  his  wife's  separate  use,  they  residing  together 
and  sharing  in  the  use  of  the  property ;  and  an  insolvent 
retains  an  insurable  interest  in  goods  concealed  from  his 
creditors.  To  prove  the  value  of  furniture  in  the  possession 
of  the  insured  at  the  time  of  the  loss,  a  former  insurance 
of  his  furniture,  renewed  and  kept  up  by  him,  was  received 
in  evidence.  But  it  appearing  that  the  furniture,  <fec.,  had 
been  sold  under  an  execution,  except  the  articles  included 
in  the  settlement,  and  the  policy  drof^ed ;  and  that  after- 
wards the  insured  becoming  insolvent,  stated  in  his  sched- 
ule that  he  had  no  furniture  except  those  articles,  which 
he  declared  to  be  of  the  value  of  fifty  ])ound8,  his  claim 
in  respect  of  the  same  articles  being  upwards  of  two  hun- 
dred pounds ;  this  was  left  to  the  jury  as  evidence  on  a 
plea  that  the  claim  was  fraudulent.  Even  where  there  is 
no  fi'aud,  the  insured,  on  a  fire  policy,  can  only  recover  the 
real  amount  of  the  loss.  Goulstone  v.  Royal  Ins.  Co.  Fost. 
&  Fin.  N.  P.  27G.     1858. 

§  30.  A  lien  on  a  building,  acquired  by  furnishing 
materials  for  its  construction, is  an  insurable  interest;  and 
the  material  man  has  a  subsisting  lien  in  the  intermediate 
time  between  the  furnishing  of  the  material  and  the  expi- 
ration of  the  six  months,  limited  by  the  law,  for  filing 
his  claim,  though  no  claim  had  been  filed  by  him.  Frank- 
lin Fire  Ins.  Co.  v.  Coates,  14  Md.  285.     1859. 


INSURABLE    DTTEREST. 


355 


§  31.  The  plaintiff,  in  an  action  on  a  policy  of  insur- 
ance, averred  that  at  the  time  of  eflfecting  the  policy,  he 
was  interested  in  the  property  insured  ;  that  his  interest 
was  before  the  loss  assigned  by  him  to  one  B.,  which  as- 
signment was  accepted  by  defendants;  and  that  until  the 
loss  B.  continued  interested,  and  the  plaintiff  as  trustee 
for  him.  Defendants  did  not  demur,  but  pleaded,  1st, 
that  at  the  time  of  the  loss,  the  plaintiff  had  no  interest ; 
and,  2d,  that  before  the  fire  he  assigned  the  policy  to  B. 
without  having  the  transfer  endorsed,  and  without  defend- 
ants' consent.  It  appeared  that  the  statement  in  the 
declaration  was  true ;  that  is,  that  the  plaintiff  had  as- 
signed his  interest  to  B.,  which  assignment  was  approved 
by  defendants.  Held^  that  the  plaintiff  was  entitled  to 
succeed  on  the  issue.  Park  v.  Phcenix  Ins.  Co.  19  Upper 
Canada,  Q.  B.  110.    .1859. 

§  32.  The  lien  of  a  mechanic  is  created  by  law,  and 
is  intended  to  be  a  security  for  the  price  and  value  of 
work  performed  and  materials  furnished  ;  as  such  it  at- 
taches to,  and  exists  on  the  land,  and  the  Iniilding  erected 
thereon,  from  the  commencement  of  the  time  that  the 
labor  is  being  performed  and  the  materials  furnislied ;  g,nd 
the  mechanic  has  an  actual  positive  interest  in  the  building 
anterior  to  the  time  of  its  recognition  by  the  court,  or  the ' 
reduction  of  the  amount  due,  to  a  judgment ;  and  that  too 
in  such  a  sense,  as  that  it  is  possible  for  it  to  be  destroyed 
by  fire,  so  that  the  mechanic  shall  lose  the  entire  value 
and  price  of  his  labor  and  materials.  Hence  it  is  some- 
thing more  than  a  mere  claim  to  a  lien ;  it  is  de  facto  as 
much  a  lien  or  security  before  judgment,  as  a  mortgage 
is  a  lien  prior  to  foreclosure,  and  therefore  an  insurable 
interest.  Carter  v.  Humboldt  Fire  Ins.  Co.  12  Iowa,  284. 
1861. 

§  33.  A  mechanic's  lien  is  an  insurable  interest ;  and 
the  judgment  establishing  the  lien  is  the  highest  evid^'nce 
of  the  existence  of  such  interest,  and  is  conclusive.  Stout 
v.  City  Fire  Ins.  Co.  of  New  Haven,  12  Iowa,  371.     18G1. 

§  34.  A  sheriff  who  has  goods  in  his  custody  under 
process  has  a  special  property  giving  him  an  insurable 
interest  therein.     White  v.  Madison,  2G  N.  Y.  117.     1862. 


1 


I.  '■ 


■ii 


I:: 


:^l 


ii 


cK-ta 


356 


INSURABLE    INTEREST. 


§  35.  Under  a  lease  of  vacant  ground,  at  a  nominal 
rent,  with  covenants  on  the  part  of  the  lessees  to  erect  a 
valuable  building  of  a  permanent  nature,  and  at  the  ex- 
piration of  the  term  to  surrender  the  premises  in  as  good 
condition  as  reasonable  use  and  wear  will  permit,  dam- 
ages by  the  elements  excepted,  and  with  no  reservation 
of  a  right  to  remove  the  building,  such  building  belongs 
to  the  lessors,  at  the  expiration  of  the  term,  and  they 
then  have  an  insurable  interest  therein.  Mayor,  &c.  of 
New  York  v.  Exchange  Fire  Ins.  Co.  9  Bosw.  N.  Y.  424. 
1862. 

§  36.  Executors,  to  whom  real  property  is  devised  by 
their  testator's  will,  have  an  insurable  interest  therein  by 
virtue  of  the  trust ;  and  where  the  insurers  issue  a  policy 
to  the  testator  in  his  lifetime,  which  does  not  require  him 
to  show  that  he  was  owner  in  fee,  nor  forbid  an  assign- 
ment of  the  property,  and  after  his  death  they  renew  the 
insurance  in  favor  of  his  executors,  without  inquiry  or  rep- 
resentations as  to  their  interest,  the  executors  may  recover 
thereon,  although  before  the  renewal  their  interest  has 
been,  without  the  knowledge  of  the  insurers,  but  in  good 
faith,  changed  to  a  mortgage  interest,  by  their  selling  the 
property,  and  taking  back,  at  the  same  time,  a  purchase- 
money  mortgage.  Phelps  v.  Gebhard  Fire  Ins.  Co.  9  Bosw. 
N.Y.404.     1862. 

§  37.  An  administrator  of  an  insolvent  estate  has  an 
insurable  interest  in  buildings  belonging  to  it.  Herkimer 
V.  Rice,  27  N.  Y.  163.     1863. 

§  38.  In  an  action  by  the  assignee  of  a  policy  to  re- 
cover a  loss  happening  after  the  assignment,  it  must  affirm- 
atively appear  in  the  complaint  that  such  assignee  had  an 
interest  in  the  property  insured.  Fowler  v.  New  York 
Indemnity  Ins.  Co.  26  N.  Y.  422.     1863. 

§  39.  Where  a  policy  has  been  assigned  with  the  con- 
sent of  the  insurer,  if  it  is  necessary  that  the  party  insured 
should  have  an  interest  at  the  time  of  the  loss,  the  amount 
of  interest  or  kind  is  not  material,  so  that  it  is  a  subsisting 
interest.  Thus,  where  the  insured  held  certain  notes  se- 
cured by  a  mortgage  upon  a  house  which  he  procured  to 


INSURABLE    INTEREST. 


357 


be  insurecl,  and  he  afterwards,  and  before  the  loss  occurred, 
assigned  the  notes  and  mortgage  and  the  policy,  with  the 
assent  of  the  insurers,  the  ultimate  liability  of  the  insured 
upon  his  assigiiment  of  the  notes,  and  his  consequent  in- 
terest in  having  the  insurance  money  go  to  the  satisfaction 
of  these  notes  in  the  hands  of  his  assignee,  is  a  sufficient 
interest  to  sustain  the  policy  and  to  authorize  him  to  sue 
in  his  own  name  for  a  recovery  of  the  insurance  money. 
New  England  Fire  &  Marine  Ins.  Co.  v.  Wetmore,  32  111. 
221.     1863. 

§  40.  The  assignee  of  a  bond  conditioned  for  the  con- 
veyance of  real  estate,  upon  which  valuable  improvements 
have  been  made  by  the  obligee,  has  an  insurable  interest 
in  the  property  therein  described.  Sayres  v.  Hartford 
Fire  Ins.  Co.  17  Iowa,  176.     1864. 

§  41.  "Where  a  policy  of  insurance,  issued  to  the 
plaintiff  by  an  agent  since  May  1, 1861,  bore  upon  its  face 
the  name  of  such  agent,  and  no  written  application  was 
made  ;  but  the  agent  examined  the  premises  and  was  fully 
informed  of  the  state  of  the  title  of  the  insured;  and  one 
of  the  conditions  of  the  policy,  which,  by  its  terms,  was 
made  a  part  thereof,  was  that  "  if  the  property  to  be  in- 
sured be  held  in  trust  or  on  commission,  or  be  a  leasehold, 
or  other  interest  not  absolute,  it  must  be  so  represented  ' 
to  the  company,  and  expressed  in  the  policy,  in  writing, 
otherwise  the  insurance,  as  to  such  property,  shall  be  void ;" 
and  the  interest  of  the  'insured  was  in  fact  that  of  mort- 
gagee, but  that  fjsict,  or  that  his  interest  as  such,  was  to  be 
insured,  did  not  appear  in  the  policy ;  Held,  that,  if  there 
be  an  error  in  the  description  of  the  interest  of  the  in- 
sured in  the  policy,  it  is  imputable  to  the  defendant's 
agent,  and  the  policy  is  not  void  by  reason  thereof ;  and, 
that  if  there  had  been  a  misrepresentation  as  to  the  interest 
of  the  insured,  it  would  not  prevent  a  recovery  to  the  full 
amount  of  the  interest  insurable,  unless  such  misrepresent- 
ation was  fraudulent.  Emery  v.  Piscataqua  Fire  &  Marine 
Ins.  Co.  52  Me.  322.     1864. 

§  42.  A  lease,  executed  by  the  mayor,  &c.  of  New 
York  to  K.  and  others,  was  upon  the  condition  that  the 
lessees  should  erect  upon  the  demised  premises  such  a 


;  ! 


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H     '  •' 


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i  I 


358 


mSUBABLE    INTEREST. 


building  as  was  described  in  a  certain  petition  and  resolu- 
tion ;  and  at  the  expiration  of  the  term  quit  and  surrender 
the  premises  in  as  good  state  and  condition  as  reasonable 
use  and  wear  thereof  would  permit.  The  rent  reserved 
was  nominal  only.  Jlehl,  *hat  the  future  ownership  by 
the  lessors  of  the  building  to  be  erected  by  the  lessees, 
was  in  the  contemplation  of  the  parties  at  the  time  the  lease 
was  executed ;  and  that  at  the  expiration  cf  the  term  the 
lessors  became  the  owners  of  the  superf,tructure  whicb 
had  been  erected  in  pursuance  of  the  conditions  of  the 
lease,  and  Lad  an  insurable  interest  therein.  That  the 
lessors  having  been  in  possession  of  the  building  ereciUd 
by  the  lessees,  under  a  claim  of  ownership,  at  the  time  of 
procuring  an  insurance  by  them  upon  the  same,  the  insurers 
could  not  be  allowed,  in  an  action  on  the  policy,  to  dispute 
the  lessors'  interest  in  the  building ;  even  if  the  title  was 
acquired  by  an  act  constituting  a  trespass  as  against  the 
lessees,  or  their  receiver.  Mayor,  &c.  of  New  York  v. 
Brooklyn  Ins.  Co.  41  Barb.  N.  Y.  231.     1864. 

§  43.  Where  the  insured  has  no  interest  in  the  prop- 
erty at  the  time  of  the  loss,  the  policy  is  void,  although 
the  loss  is  by  the  terms  of  the  policy  made  payable  to  a 
third  person,  and  such  third  person  at  the  time  of  the 
loss  has  an  interest  in  the  property.  Tallman  v,  Atlantic 
Fire  &  Marine  Ins.  Co.  29  How.  N.  Y.  71.     18G5. 

§  44.  A  policy  of  insurance  upon  the  interest  of  a 
" mortgagee  in  possession,"  in  a  building  "occupied  by  a 
tenant,"  is  valid,  although  another  person  was  in  the  occu- 
pation of  the  premises  under  an  agreement  from  the  as- 
sured to  convey  the  same  to  him.  Davis  v.  Quiucy  Mut. 
Fire  Ins.  Co.  10  Allen,  Mass.  113.     18C5. 

§  45.  A  husband  as  tenant  by  the  curtesy  of  the 
real  estate  of  his  wife,  may  effect  a  valid  iiisiu'unce  thereon, 
in  his  own  name.  Harris  v.  York  Iu.ut.  Ins.  Co.  50  Penn. 
St.  341.     1865. 

§  46.  A  mechanic's  lien  is  an  insurable  interest. 
Longhurst  v.  Star  Ins.  Co.  19  Iowa,  304.     1805. 

§  47.  The  plaintiffs,  being  the  owners  of  certain  prem- 
ises, leased  the  same  to  C.  who,  by  the  terms  of  his  lease. 


INSURABLE    INTEREST. 


359 


agreed  to  pay  the  necessary  premium  to  enable  the  lessors 
to  keep  the  premises  insured  for  their  own  benefit,  to  the 
amount  of  $5,000.  At  the  execution  of  this  lease  there 
was  a  policy  on  the  property.  When  it  expired,  C.  asked 
leave  to  change  the  company,  and  agreed  verbally  to  keep 
the'  property  insured,  for  the  lessors,  to  the  extent  of 
$5,000.  He  thereupon  took  out  the  policy  in  suit,  insur- 
ing "  his "  (^C.'s)  building ;  "  loss,  if  any,  payable  to  L.," 
one  of  the  lessors,  who  was  acting  trustee  for  the  prop- 
erty. 

Held^  that  the  agreement  of  C.  to  keep  the  property 
insured  for  the  lessors,  to  the  extent  of  $5,000,  made 
him  liable  to  the  lessors  for  a  breach  of  that  agi'eement, 
and  gave  him  an  insurable  interest  in  the  property  to  that 
extent. 

That  as  he  had  an  insurable  interest,  the  property  was 
his  for  the  purpose  of  indemnity,  to  the  amount  of  his 
interest;  an< I  he  could  insure  that  interest.  Lawrence  v. 
St.  Mark's  Fire  Ins.  Co.  43  Barb.  V.  Y.  479.     1865. 

§  48.  One  of  five  trustees  of  a  church  effected  an  in- 
surance upon  the  church  building  in  his  individual  name. 
The  policy  provided  that  in  case  of  loss  the  amount  should 
be  paid  to  a  creditor  of  the  insuring  trustee,  to  wliom,  how- 
ever, the  church  was  not  indebted.  The  premium  was  * 
paid  by  the  insuring  trustee  out  of  his  own  funds,  but  on 
account  of  the  ]  nsh,  and  with  the  assent  of  the  other 
trustees.  IMd^  Jiat  the  company  was  liable  upon  the 
policy,  it  being  a  matter  immaterial  to  the  company  (sup- 
posing the  risk  to  be  the  same)  Avhether  the  person  ap- 
pointed by  the  insuring  trustef^  to  receive  the  money  re- 
tained it  to  his  own  use  or  pi»»d  it  to  the  trustees.  A 
trustee,  as  such,  has  an  insurable  interest  in  tlie  trust 
j)roperty.  Insurance  Co.  v.  Chase,  5  Wall.  S.  Ct.  U.  S. 
609.     1866. 

§  49.  The  mortgagee  of  a  chattel  mortgage  has  aii  in- 
surable interest  though  the  mortgagor  c/iitinues  in  posses- 
sion of  the  chattels.  The  mortgage  \va8  under  seal  and 
was  for  J6184,  the  insurance  was  for  ii500,  made  before 
default  of  the  mortgagor,  and  the  amount  of  the  mortgage 
was  not  mentioned.     Ildd^  the  mortgagee  could  only  re- 


I 


til 


^ 


360 


INSFBABLE    INTEREST. 


cover  the  face  of  the  raortgasfe,  and  could  not  tack  subse- 
quent advances,  by  parol.  That  the  omission  of  the  mort- 
gagor in  effecting  insurance  for  the  mortgagee  to  mention 
the  amount  of  the  mortgage,  did  not  render  the  insurance 
void.  Ogden  v.  Montreal  Ins.  Co.  3  IJ.  C,  C.  P.  497. 
1853. 

§  50.  Assured  sold  the  goods  to  C,  to  whom  the  pol- 
icy was  assigned  with  company's  consent ;  C.  sold  them  to 
M.,  and,  on  M.'s  notes  in  part  payment,  L.  was  accommoda- 
tion endorser,  on  a  verbal  agreement  that  the  proceeds  of 
the  goods  should  be  paid  to  L.,  to  retire  the  notes  with,  and 
the  policy  should  be  assigned  to  L.  to  secure  him,  which 
was  done  with  the  company's  consent.  Held^  no  recovery 
could  be  had;  for  L.  had  no  insurable  interest  in  'lie 
goods,  and  M.  being  a  stranger  to  the  policy,  it  could  not 
enure  to  his  benefit.  Davies  v.  Home  Ins.  Co.  24  U.  C.,Q. 
B.  364.     1865. 

§  51.  Declaration  on  plaintiff's  (half)  interest  in  a 
mill ;  Plea,  that  plaintiff  had  sold  to  B.,  and  therefore  had 
no  insurable  interest;  Reply,  that  this  conveyance  was 
only  to  secure  B.  against  loss  as  surety  for  plaintiff,  and 
no  loss  had  accrued  to  B.,  and  that  one  F.,  was  entitled 
to  the  insurance  as  mortgagee.  IMd^  on" demurrer  the  rep- 
lication showed  an  insurable  interest,  plaintiff  being  really 
a  mortgagor,  and  was  not  affected  by  the  unnecessary  state- 
ment of  F.'s  interest.  Smith  v.  Royal  Ins.  Co.  27  U.  C, 
Q.  B.  54.     1867. 

§  52.  The  mortgagor  of  premises,  his  vendee,  to  whom 
the  mortgagor's  policy  was  assigned,  and  the  mortgagee, 
agree  that  the  latter  can  have  a  decree  of  foreclosure,  and 
the  two  former  shall  have  two  years  to  redeem.  The  de- 
cree was  entered  giving  only  fifteen  months,  and  in  a 
sale  under  it  the  mortgagee  bought  in  the  premises. 
Held,  t\n\t  as  the  latter  was  not  an  innocent  third  party 
buying  without  notice,  the  agreement  for  two  years  bound 
him,  and  the  vendee  still  had  the  right  o*'  redemption, 
and  a  loss  occurring,  the  vendee  could  recover  as  mort- 
gagor. 

Per  Lawrence,  J.    It  is  well  settled  that  a  mortgagor 
may  insure   to   the  full  value   of  the  premises   and  re- 


HTSTJRABLE    INTEREST. 


361 


cover  the  full  sum  insured  if  he  has  the  right  of  re- 
demption at  the  time  of  the  loss.  Stephens  v.  111.  Mut. 
F.  Ins.  Co.  43  111.  327.     1867. 

§  53.  A  's  insurable  interest  in  a  house  built  on  his 
land  by  C,  is  not  forfeited  by  his  agreement  or  under- 
standing that  C.  might  buy  the  land,  or  by  A.'s  consent, 
revoked  before  the  sale,  that  the  house  should  be  sold 
under  an  execution  against  C. 

A  surviving  partner  may  maintain  an  action  on  a 
policy  to  the  firm  on  a  house  owned  by  them  as  tenants 
in  common.  Oakman  v.  Dorchester  Mut.  F.  Ins.  Co.  98 
Mass.  57.     1867. 

§  54.  The  owner  of  insured  buildings  having  con- 
tracted to  sell  them,  part  of  the  purchase  money  being 
paid,  and  retaining  the  title  until  the  payment  of  the 
balance,  has  an  insurable  interest,  by  a  host  of  authorities. 
Hill  V.  Cumberland  Valley  Mut.  Prot.  Co.  59  Pa.  St.  474. 
1868. 

§  55.  A  partner  being  liable  in  solido  for  the  firm 
debts,  has  a  right  to  have  iall  firm  assets  first  applied  to 
such  debts  before  any  division  is  made,  and  has,  therefore, 
an  insurable  interest  in  the  entire  stock,  and  on  receipt  of 
insurance  xjoney  for  a  loss  must  account  to  the  firm 
for  it.  Manhattan  Ins.  Co.  v.  Webster,  59  Pa.  St.  227.' 
1868. 

§  56.  The  vendee  under  a  binding  agreement  for  sale 
of  premises,  bei'ig  enuitable  owner,  has  an  insurable  in- 
terest therein,     iirewer  v.  Herbert,  30  Md.  301.     1808. 

§  57.  The  insured  sold  the  insured  property  taking  a 
judgment  for  the  unpaMi  balance  of  purchase  money,  and 
retaining  the  policy ;  tie  building  was  burned,  the  judg- 
ment being  unpaid.  Held^  although  a  mortgage,  being  a 
specific  lien,  is  an  insurable  interest,  yet  a  judgment  is  a 
general  lien  only,  for  which  other  estate  is  equally  aii.s.\ver- 
able,  and  although  for  purchase  money  draws  after  it  no 
specific  pledge  of  the  lAiul,  aiid,  therefore,  is  not  an  insur- 
able interest.  Grevemeyer  v.  Southern  Mut.  F.  Ins.  Co. 
02  Pa.  St.  340.     1809. 

§  58.     Mere  seizure  of  the  cotton  by  the  U.  S.,  in  the 


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i 
I 


i 


362 


INSUEABLE    INTEREST. 


absence  of  evidence  of  condemnation,  or  of  act  of  for- 
feiture, could  not  divest  assui'ed's  title  or  bar  his  recovery. 
Keith  v.  Globe  Ins.  Co.  52  111.  518.     1869. 

§  59.  Where  a  person  bought  from  a  wharfinger 
3,500  bushels  of  wheat,  part  of  a  larger  quantity,  and 
paid  for  it,  but  the  wheat  had  not  been  separated  from 
the  rest ;  it  was  held,  he  had  no  insurable  interest  in  the 
wheat.  Box  v.  Provincial  Ins.  Co.  15  Grant's  Ch.  337  and 
552.     1869. 

§  60.  A  party  holding  a  contract  for  purchase  of 
premises  on  which  he  has  made  payments,  although  he 
has  made  a  contract  to  sell  it  to  a  third  person,  has  an  in- 
surable interest  therein,  and  such  interest  is  not  affected 
by  such  third  person's  having  obtained  a  deed  from  the 
original  owner  witiiout  such  party's  knowledge,  for  he 
still  lias  the  equitable  title,  and  it  is  not  fraud  to  call  him- 
self *' owner,"  he  showing  his  contract  to  sell.  Acer  v. 
Merchants'  Ins.  Co.  57  Barb.  68.     1870. 

§  61.  A  bank  owning  as  collateral  a  warehouseman's 
receipt  informally  made ;  Held,  to  have  acquired  no  in- 
surable interest  in  the  grain  it  purports  to  represent. 
Todd  V.  Liv.  Lon.  &  Gl.  Ins.  Co.  20  U.  C,  C.  P.  523. 
1870.     (Reversing  18  lb.  192). 

§  62.  Semble.  That  a  policy  to  "  E.  B.,  Executrix," 
the  object  of  which  was  to  protect  the  widow  and  chil- 
dren, the  policy  being  on  real  estate  the  word  "  executrix  " 
shows  an  insurance  to  her  as  a  trustee,  not  as  a  personal  re^p- 
resentative,  and  it  cannot,  therefore,  be  said  that  assured 
has  no  insurable  interest,  because  the  personalty  is  suf- 
ficient to  pay  all  the  debts  of  the  estate  without  calling 
on  the  realty.  Globe  Ins.  Co.  v.  Boyle,  21  Oh.  St.  119. 
1871. 

§  63.  A  nominal  i:)artnership,  although  carried  on  for 
the  sole  benefit  of  one  of  the  partners,  there  having  been 
a  dissolution  without  withdrawal  of  name  of  the  retiring 
partner,  has  an  insurable  interest  in  the  firm  name  in 
goods  received  by  it  on  commission,  and  described  in  the 
policy  as  held  in  trust  or  on  commission.  Phoenix  Ins. 
Co.  v.  Hamilton,  14  Wall.  504.     1871. 


INSUEANCE    COMPANIES. 


363 


§  64.  The  owner  of  stock  in  a  corporation  for  profit, 
since  he  would  suifer  in  case  of  fi/e,  has  an  insurable  in- 
terest in  the  corporate  property,  and  may  I'ecover  the 
actual  loss  he  has  sustained.  Warren  v.  Davenport  F.  Ins. 
Co.  31  Iowa,  464.     1871. 

§  65.  One  whose  property  is  insured  at  his  request 
in  the  name  of  his  agent,  cannot  be  said  to  have  no  in- 
surable interest.  Bobbitt  v.  Liverpool,  Lond.  &  Gl.  Ins. 
Co.  66  N.  Ca.  70.     1872. 

See  Alienation,  §  77,  88,  95,  98.  Assignment,  43,  44,  51,  Estoppel,  11. 
Evidence,  70.  Fraud,  13.  Goods  in  Trust  or  on  Commission,  4,  17.  Ille- 
gality of  Contract,  10.  Interest  in  Policy,  55,  59.  Parol  ET^idence,  11. 
Pleading  and  Practice,  96,  Keiusurance,  3.  Renewal  of  Policy,  7.  Subroga- 
tion, 21.    Title,  61,  6;J, 


INSURANCE   COMPANIES. 

§  1.  An  insurance  company  does  not  forfeit  its  char- 
ter because  of  non-user,  by  refusing  to  insure  against 
extra  hazardous  risk^.  Corwin  v.  Urbana  &  Champaign 
County  Mut.  Ins.  Co.  14  Ohio,  6.     1846. 

§  2.  In  a  comj)any  -whose  business  is  conducted  by 
the  president,  vice-i)reeident  and  secretary,  subject  to  the 
dii'ection  of  a  board  of  trustees,  the  secretary  being  em- 
powered verbally  by  the  president  and  vice-president,  with 
the  knowledge  of  the  trustees,  to  indorse  the  premium 
notes  of  the  company,  is  thereby  authorized  to  transfer 
the  title  of  a  note  indorsed  by  him.  Leary  v.  Blanchard, 
48  Me.  269.     1860. 

§  3.  In  an  action  against  the  maker,  by  the  indorsee 
of  a  note,  given  to  an  insurance  company,  and  by  them 
transferred  in  payment  for  bank  stock  purchased  by  them, 
the  defendant  cannot  controvert  the  right  of  the  company 
to  purchase  the  stock.  Brown  v.  Donnell,  49  Me.  421. 
1860. 

§  4.    An  insurance  company  which  is  authorized  by 


'in 


. 


I; 


Hi 


364 


mSUBANOE    C0MPA17IES. 


Wl^ 


i  m> 


I 

1^ 


its  charter  "  to  loan  its  ftinds  and  monfeys  "  to  individuals 
.  or  public  corporations,  on  real  or  personal  security,  but  ia 
prohibited  from  using  the  same  "  in  the  trade  or  business 
of  exchange  or  money  brokers,"  may  lawfully  purchase  a 
bill  of  exchange  drawn  on  and  accepted  by  third  persons, 
if  it  was  bought  in  good  faith,  either  as  an  investment,  or 
to  collect  a  debt  previously  due  to  said  company.  White's 
Bank  of  Buffalo  v.  Toledo  Fire  and  Marme  Ins.  Co.  12 
Ohio  St.  601.     1861. 

§  5.  Insurance  companies  in  Illinois  are  prohibited 
by  statute  from  interposing  the  defense  of  usury.  Hart- 
ford Fire  Ins.  Co.  v.  Hadden,  28  111.  260.     1862. 

§  6.  An  insurance  company,  chartered  in  1836,  was 
authorized  by  its  charter  to  insure  at  such  rates  and  upon 
such  proportion  of  premium  notes  and  of  cash  premium 
as  the  directors  should  determine.  And  the  board  of  di- 
rectors was  required,  from  time  to  time,  to  fix  and  deter- 
mine the  rates  of  insurance,  the  sum  to  be  insured,  and  the 
amount  of  premium  notes  and  money  to  be  paid  for  any 
insurance.  In  1851,  the  company  extended  its  charter, 
under  the  act  of  1849,  and  changed  its  corporate  name. 
The  act  of  June  25,  1853,  relative  to  the  incorporation  of 
insurance  companies,  provides  that  all  companies  incorpo- 
rated or  extended  under  the  act  of  184*.),  "  are  hereby 
brought  under  the  provisions  of  this  act,  except  that  their 
capital  may  continue  of  the  amount  named  in  their  char- 
ters, <fec.,  and  are  also  entitled  to  all  the  privileges  granted 
by  said  charters."  Held,  that  the  right  of  the  directors  to 
determine  the  amount  of  cash  premium  to  be  paid  at  the 
time  of  the  insurance,  was-a  "privilege  granted"  by  the 
charter,  and  was  therefore  expressly  excepted  by  the  act 
of  1853,  from  the  operation  of  its  provisions.  Hyatt  v. 
Whipple,  37  Barb.  N.  Y.  595.     1862. 

§  7:  The  knowledge  tliat  an  officer  of  an  insurance 
company  acquires  by  rumor,  or  by  information  received  in 
his  individual  capacity,  cannot  be  regarded  as  constructive 
notice  to  the  company.  The  notice  should  be  given  by 
one  having  autliority  for  that  purpose,  to  some  one  having 
autliority  to  receive  it.  Keenaii  v.  Diibu(pie  Mut.  Fire 
Ins.  Co.  13  Iowa,  375.     1862. 


INSURANCE    COMPANIES. 


365 


§  8.  Insurance  companies,  without  any  special  au- 
thority for  that  purpose,  possess  the  incidental  power  to 
borrow  money,  and  this  includes  the  power  to  obtain  in- 
dorsers  or  sureties,  and  to  secure  them  ])y  a  transfer  of 
assets ;  and  it  is  immaterial  whether  such  transfer  is  di- 
rectly to  the  indorsers,  or  to  trustees  for  their  benefit. 
Nelson  v.  Eaton,  16  Abb.  Pr.  113.     1863. 

§  9.  The  act  incorporating  the  Kentucky  Ins.  Co.  did 
not  reserve  any  power  of  repeal — yet  an  existing  statute, 
"  that  all  charters,  &c.,  &g.,  shall  be  subject  to  amendment 
or  repeal  *  *  *  unless  a  contrary  intent  be  therein 
plaiidy  expressed,"  is  a  part  of  the  contract — therefore  an 
act  repealing  this  charter,  whether  just  or  unjust,  reason- 
able or  unreasonable,  must  be  held  constitutional.  The 
proviso  in  the  existing  statute,  that  no  repeal  shall  impair 
rights  previously  vested,  is  meant  to  secure  the  rights  of 
beneficiaries,  not  to  affe«.c  the  mere  power  to  repeal  the 
franchise.    Griffin  v.  Kentucky  Ins.  Co.  3  Bush,  592.    1868. 

*  §  10.  Neither  courts  of  law  nor  equity  have  any  gen- 
eral jurisdiction  to  decree  dissolution  of  a  corporation  at 
suit  of  an  individual,  unless  by  express  statute,  and  such 
a  decree  in  New  York  against  a  N.  Y.  corporation  dof  \ 
not  entitle  receivers  to  take  the  property  in  this  State 
which  has  been  levied  on  here  in  a  trustee  process.  Fol- ' 
ger  V.  Columbian  Ins.  Co.  99  Mass.  267.     1868. 

§  11:  A  fire  and  marine  insurance  company  was  char- 
tered prior  to  the  act  creating  an  "  insurance  department," 
and  requiring  infomiation  as  to  their  business  to  be  given 
to  the  State  superintendent.  Ileldj  the  act  was  not  un- 
constitutional as  violating  the  obligation  of  a  contract. 
State  of  Missouri  v.  Mathews,  44  Mo.  523.     1869. 

§  12.  A  legislature  may,  under  a  power  to  legislate 
corporations  out  of  existence  if  they  do  not  comply  with 
acts  amending  their  charters,  empower  a  proper  public 
officer  to  demand  an  examination  into  the  affairs  of  insur- 
ance companies  at  any  time,  and  without  previous  notice, 
and  rmimlamus  may  be  allowed  to  enforce  the  examina- 
tion.   People  v.  State  Ins.  Co.  19  Mich.  392.     1869. 


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INTEREST   m  POLICY. 

§  1.  Whether  lessee  of  a  house,  who  is  under  cove- 
nants to  repair,  accidents  by  fire  excepted,  the  house  being 
burnt  down,  and  lessor,  who  had  insured,  having  received 
the  insurance  money,  but  neglected  to  rebuild,  is  entitled 
to  an  injunction,  till  the  house  is  rebuilt,  against  an  action 
at  law  brought  by  the  lessor  for  rent,  qiicere.  Brown  v. 
QuUter,  2  Eden  Ch.  219.     1763. 

§  2.  A.,  being  intrusted  with  goods  belonging  to  B., 
undertook  to  get  them  insured.  He  afterwards  effected 
an  insurance  in  his  own  name  upon  property  on  his  prem- 
ises, but  without  making  any  mention  of  goods  "  held  in 
trust."  The  premises  were  destroyed  by  fire,  and  A.  re- 
ceived the  amount  of  his  insurance,  which  fell  considerably 
short  of  his  own  loss.  Held,  that  no  part  of  this  money 
could  be  considered  as  received  on  account  of  B.,  and  that 
it  could  not  therefore  be  set  off  in  an  action  for  work  and 
labor  brought  l)y  A.  against  B.  Gillet  v.  Mawman,  1  Taunt. 
136.     1808. 

§  3.  Insurance  on  house,  of  which  insured  was  seized 
in  fee,  in  a  mutual  association,  one  of  whose  articles  pro- 
vided that  in  case  of  tlie  death  of  a  meml>er,  his  interest 
should  survive  to  his  executors,  administrators,  or  assigns, 
who  should  be  possessed  of  the  policy.  The  insured  died 
and  the  premises  descended  to  the  heir,  and  afterwards  the 
fire  occurred.  Held,  that  no  person  could  have  the  benefit 
of  the  policy  but  the  personal  representative,  who  could 
not  be  made  a  trustee,  and  that  bill  by  the  heir  would  not 
lie.     Mildmay  v.  Folgham,  3  Ves.  471.     1797. 

§  4.  Policy  to  firm  of  two,  on  property  used  by  the 
firm  but  owned  by  one  of  the  partners.  After  the  fire,  a 
joint  commission  issued  against  the  two,  and  they  were 
declared  bankrupts,  and  their  assignees  received  the  insur- 
ance money.  The  separate  creditors  of  the  partner  own- 
ing the  property  insured  declared  entitled  to  the  money, 
and  the  case  not  within  21  Jac.  1,  C  19,  Sec.  10  and  11. 
Exp.  Smith,  1  Buck,  C.  B.  149.     1818. 


nrTEREST  IN    POLICY. 


367 


the 


§  5.  A  tenant  has  no  equity  to  comp  1  his  landlord 
to  expend  money  received  from  an  insurance  office,  on  the 
demised  premises  being  burnt  down,  in  rebuilding  the 
premises,  or  to  restrain  the  landlord  from  suing  for  the 
rent  until  the  premises  are  rebuilt.  Leeds  v.  Cheetham,  1 
Simons,  Ch.  146.     1827. 

§  6.  P.  took  a  policy  on  a  house,  and  died,  devising 
the  same,  subject  to  a  charge,  in  favor  of  A.,  whom  he  ap- 
pointed administratrix.  A.,  while  administratrix,  renewed 
the  policy,  and  during  the  renewed  term,  the  house  burned. 
Held^  that  as  A.  renewed  the  policy  while  administratrix, 
she  must  be  deemed  to  have  renewed  as  administratrix ; 
and  that  the  proceeds  of  insurance  were  of  the  personal 
estate,  but  subject  to  a  trust  in  favor  of  those  interested 
in  the  real  estate.  Pany  v.  Ashley,  3  Simons,  Ch.  97. 
1829. 

§  7.  Tenant  of  distillery,  being  entitled  under  his 
lease  to* make  new  erections,  and  to  remove  them  at  expi- 
ration of  lease  unless  taken  by  the  landlord  at  a  valuation, 
and  having  made  such  erections,  and  taken  a  policy  on 
them  for  less  than  their  value,  and  on  his  stock,  «fee.,  for 
other  sums,  and  the  entire  property  being  consumed; 
Held^  1st,  that  the  landlord  was  not  entitled  to  claim  from  ^ 
the  insurance  office,  as  an  arresting  creditor  of  the  tenant, 
any  part  of  the  value  of  ])uildings  consumed ;  but,  2d, 
that  he  was  entitled  to  claim  for  rents  due  prior,  but  not 
posterior,  to  the  fire.  "Scottish  Union  Ins.  Co.  v.  Mackin- 
tosh, 9  Cases  in  the  Court  of  Sessions,  310.     1831. 

§  8.  A.  had  goods  deposited  with  him  by  B.  A  loss 
occurred,  and  A.  made  claim  for  A.  and  B.'s  goods,  and 
gave  memorandum  to  B.,  agreeing  to  pay  his  proportion  of 
insurance,  when  ascertained.  Helil^  that  A.  could  not 
show  b^  parol  evidence  that  he  intended  by  such  memo- 
randum to  account  only  for  what  remained,  after  his  own 
loss  had  been  made  up ;  that  B.  was  entitled  to  receive  of 
insurance  money,  in  propoi'tiou  of  the  value  of  his  goods 
to  the  whole  loss,  and  that  instructions  from  B.  to  A.,  to 
insure,  were  not  necessary  to  enable  him  to  recover.  Du- 
rand  v.  Thouron,  1  Port.  Ala.  238.  1834.  Watkins  v. 
Durand,  1  Port.  Ala.  251.    1834. 


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INTEREST  IN  POLICY. 


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§  9.  Where  covenant  is  made  by  mortgagor  to  keep 
premises  insured,  and  to  apply  money  to  rebuilding,  in 
case  of  loss,  for  benefit  of  mortgagee,  a  court  of  equity 
would  regard  mortgagor  as  the  trustee,  if  he  received  the 
insurance  money,  and  coerce  such  application  of  the  money, 
and  so  with  the  legal  representatives  of  mortgagor ;  and, 
if  the  property,  after  its  destruction  by  fire,  has  been  sold, 
and  did  not  pay  the  mortgaged  debt,  and  its  rebuilding  is 
impossible  in  consequence  of  such  sale,  yet  still  the  mort- 
gagee would  be  entitled  to  be  paid  out  of  the  insurance 
money,  in  preference  to  the  general  creditors  or  his  repre- 
sentatives. Thomas  v.  Van  Keft,  6  Gill  &  Johns.  Md. 
372.     1834. 

§  10.  Where  property,  shipped  from  New  Orleans  to 
Liverpool,  insured  by  the  owners  in  London  about  the 
time  of  the  shipment,  and  soon  after  relanded,  and  stored, 
and  insured  by  the  factors  in  New  Orleans  against  fire  "  for 
all  whom  it  may  concern,"  was  destroyed  by  fire,  and  the 
London  office  paid  on  the  first  policy ;  JleM,  that  the  latter 
could  not  claim  indemnity  from  the  New  Orleans  office, 
unless  the  transaction  amounted  to  a  reinsurance  ;  that  it 
was  not  a  reinsurance,  because  no  special  authority  had 
been  given,  nor  had  there  been  any  subsequent  ratification 
of  their  acts  by  the  plaintiffs  before  the  loss  happened. 
Alliance  Marine  Assurance  Co.  v.  Louisiana  State  Ins.  Co. 
8  La.  1.     1835. 

§  11.  The  assignee  of  the  policies  in  this  case,  who 
was  mortgagee,  obtained  judgment  on  the  policies  in  the 
name  of  the  mortgagor,  and  was  afterwards  ])aid  the 
amount  of  the  debt  due  him  by  the  mortgagor.  The  lat- 
ter then  gave  the  company  notice  of  the  payment,  and 
that  he  claimed  to  be  owner  of  the  judgment  l)y  opera- 
tion of  law.  The  company  then  instituted  proceedings  for 
a  vacation  of  the  judgment.  While  the  policies  were  in 
the  hands  of  the  assignee,  the  assignor  had  obtained  other 
insurance  without  notice ;  and  although  it  w*as  held  that 
this  act  was  not  available  as  a  defense  to  an  action  on  said 
policies  for  the  benefit  of  the  assignee  (see  Responsibility 
of  Assignee  for  Acts  of  Assignor,  §  4),  it  was  claimed  that 
the  company  was  entitled  to  the  benefit  of  the  point  now. 
Held,  that  the  judgment  was  conclusive  of  the  liability 


INTEREST   IN    POLICY. 


369 


of  the  company,  and  plaintiff  might  buy  it  as  well  as  any- 
body else;  and  that,  it  being  entered  in  his  name,  the 
payment  of  the  mortgage  brought  back  to  him  the  whole 
interest,  as  effectually  as  it  could  have  been  done  by  as- 
signment. The  case  of  Traders'  Insurance  Co.  v.  Roberts, 
9  Wend.  474,  reversed.  Roberts  v.  Traders'  Ins.  Co.  17 
Wend.  N.  Y.  631.     1836. 

§  1 2.  Chancery  has  no  power  to  decree  to  mortgagees 
the  proceeds  of  a  policy  of  insurance,  effected  by  the 
mortgagor  on  the  mortgaged  property,  where  the  same 
has  been  destroyed  by  fire,  and  no  covenant  exists  in  the 
deed  as  to  insurance.  Vandegraaff  v.  Medlock,  3  Port. 
Ala.  389.     1836. 

§  13.  There  is  no  principle  of  law  or  equity  by  which 
a  mortgagee  has  a  right  to  claim  the  benefit  of  a  policy 
underwritten  for  the  mortgagor,  on  the  mortgaged  prop- 
erty. Columbian  Ins.  Co.  v.  Lawrence,  10  Pet.  U.  S.  507. 
1836. 

§  14.  S.  took  a  policy  to  himself,  his  heirs  and  as- 
signs, and  afterAvards  died,  devising  certain  premises,  in- 
cluding the  building  insured,  to  his  widow  for  life,  and 
remainder  to  his  infant  daughters.  The  widow  married 
one  H.,  and  afterwards  the  building  insured  was  destroyed 
by  fire.  Upon  suit  brought,  the  insurance  company  was 
decreed  to  pay  the  insurance  money  to  H.  and  wife,  upon 
their  giving  bond  to  pay  the  amount  received  to  the  in- 
fants at  the  death  of  S.'s  widow,  aud  the  money  was  paid 
and  a  bond  was  executed  accordingly,  aud  the  money  was 
expended  in  rebuilding  the  house.  After  the  death  of  the 
widow,  the  daughters  with  their  husbands  brought  an  ac- 
tion at  law  on  the  bond,  and  recovered  judgment  against  the 
surviving  obligor,  whereivpon  he  exhibited  his  bill  to  en- 
join the  proceedings.  Held,  1st,  that  the  action  of  the 
court  requiring  the  execution  of  bond,  before  payment  of 
the  insurance  money  to  H.  and  wife,  was  correct,  and,  even 
if  erroneous,  could  not  then  be  impeached ;  2d,  that  under 
the  provisions  of  this  policy,  it  passed  on  the  death  of  S. 
to  his  devisees  in  the  proportion  of  their  interests  in  the 
premises,  and  not  to  his  administrator ;  3d,  that  independ- 
ent of  the  bond,  the  right  to  the  insurance  money  at  k 

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death  of  the  widow  became  vested  in  the  daughters,  and, 
upon  their  marriage,  in  their  husbands ;  and  there  existed 
no  rule  ia  equity  requiring  or  authorizing  the  application 
of  the  money  to  rebuilding  the  house  without  their  con- 
sent; and  the  fact  that  the  money  was  so  applied,  and 
that  the  house,  so  rebuilt,  went  as  part  of  the  realty  to  the 
daughters  on  the  death  of  the  widow,  did  not  in  any  way 
affect  the  right  to  demand  the  money  notwithstanding. 
Injunction  refused.  Haxall  v.  Shippen,  10  Leigh,  Va. 
536.    1839. 

§  15.  B.  agreed  to  effect  insurance  on  property  of  "W., 
and  did  so  in  his  own  name,  informing  W.  that  he  had 
effected  insurance  for  his  benefit  under  the  agreement. 
Held^  t'  :t^^  "W.  had  such  an  equitable  interest  in  the  policy 
that  he  vvr~  entitled  to  the  insurance  money  as  against  an 
attaching  »  \3ditor  of  B.  Providence  County  Bank  v. 
Benson,  21  Pick.  Mass.  204.     1840. 

§  16.  A  mere  lien  upon  the  property  insured  does  not 
give  to  the  holder  of  that  lien  a  corresponding  claim  upon 
the  policy  which  the  owner  of  the  property  has  obtained 
for  tne  protection  of  his  own  interest  therein ;  although 
the  assured  is  personally  liable  to  pay  the  debt,  which  is 
a  lion  upon  the  property  insured.  Carter  v.  Rocket,  8 
Paige,  N.  Y.  437.    1840. 

§  17.  The  contract  of  insurance  does  not  run  with 
the  land,  and  the  grantee  of  a  conveyance  made  of  the 
property  insured  acquires  no  interest  in  the  policy  or  its 
proceeds.    Wilson  v.  Hill,  3  Met.  Mass.  66.     1841. 

§  18.  In  a  partition  suit  in  equity,  A.  was  one  of 
several 'heirs,  and  co-tenant  in  common,  and  bid  off  the 
premises  at  a  master's  sale.  The  premises  were  insured 
in  the  names  of  all  the  heirs,  and,  after  confirmation  of  the 
sale,  and  before  A.  received  the  deed,  the  house  bid  off 
was  destroyed  by  fire.  Held^  that  A.  was  the  legal  owner 
of  the  house,  and  entitled  to  the  benefit  of  the  policy. 
Gates  V.  Smith,  4  Edw.  Ch.  N.  Y.  702.    1846. 

§  19.  Title,  after  insurance,  became  divided  between 
tenant  for  life  and  reversioner,  when  fire  occurred,  injuring 
but  not  destroying  the  building.    Hdd^  that  either  party 


INTEBEST  IN  POLICY. 


371 


might  insist  on  application  of  insurance  money  to  repairs, 
and  the  tenant  for  life  having  m  'de  the  repairs,  her  bill 
against  ijeversioner  and  insurances  company  to  have  the 
money  paid  her  unconditionally  was  sustained.  Haxall  v. 
Shippen,  10  Leigh,  536,  construed.  Brough  v.  Higgins,  2 
Gratt.  Va.  408.     1846. 

§  20.  A.,  a  manufacturer,  contracted  with  B.,  C.  and 
D.,  who  were  partners,  occupying  a  mill,  the  property  of 
B.,  for  the  drying  of  his  tvooI  in  a  room  in  the  mill.  B., 
C.  and  D.  effected  an  insurance  on  the  mill,  covering  wool 
in  the  room.  D.  retired  from  the  partnership,  after  which 
C.  and  D.  had  no  interest  in  the  room.  B.  and  C.  effected 
another  insurance,  also  covering  goods  in  the  room.  A 
dissolution  of  partnership  took  place  between  B.  and  C, 
which  was  not  communicated  to  A.  C.  afterwards  effected 
an  insurance  in  his  sole  name,  and  A-'s  wool  being  dam- 
aged by  fire,  the  insurance  office  paid  the  proceeds  from 
sale  of  damaged  wool  to  A.,  and  the  balance,  to  the  amount 
insured  thereon,  to  0.  Similar  losses  had  been  paid  by 
the  partnership  to  A.  under  former  policies.  Iletdf  that, 
as  it  was  not  shown  that  B.  had  authorized  the  effecting 
of  the  then  policy,  or  that  the  partnership  was  bound  to 
insure,  an  action  for  money  had  and  received  could  not  be' 
maintained  by  A.  against  B.  and  C.  jointly.  Armitage  v. 
Winterbottom,  1  Man.  &  Grang.  130.  (30  E.  C.  L.  379.) 
1840.  '   . 

§  21.  Where  an  insurance  was  made  by  a  lessor, 
who  had  entered  premises  for  arrears  under  covenants  in 
the  lease,  and,  upon  destruction  of  the  property,  received 
the  amount  insured ;  HeM,  that  the  sub-lessees  might  re- 
cover from  tim,  on  proving  that  the  insurance  was  made 
on  their  interest,  without  showing  a  previous  re(]^uest  to 
make  the  insurance,  or  a  subsequent  adoption  of  it,  until 
after  the  fire.  Miltenberger  v.  Beacom,  9  Penn.  St.  198. 
1848. 

§  22.  Where  lessor  entered  for  arrears,  under  a  cove- 
nant to  hold  until  arrears  were  paid,  and  stated  an  account 
with  sub-lessees  of  the  rents  received,  in  which  he  charged 
them  premiums  of  insurance  on  the  property,  and  they 
objected  to  the  account  generally ;  j&efe,  a  question  for  the 


I: 

V: 


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372 


INTEREST  IN  POLICY. 


jury,  in  an  action  by  the  sub-lessees  against  the  lessor  to 
recover  the  insurance  received  by  him  on  such  property, 
whether  the  lessor  intended  the  insurance  to  cover  his 
own  or  their  interest.  MUtenberger  v.  Beacom,  9  Penn. 
St.  198.     1848. 

§  23.  Where  mortgagees  took  possession  of  premises 
for  condition  broken,  and  whilst  in  possession  took  out 
policies  of  insurance  in  their  own  name  and  for  their  own 
benefit,  under  which  they  received  twenty-five  dollars  for 
loss  and  damage;  Held,  on  a  bill  in  equity  for  the  re- 
demption of  such  premises,  that  the  mortgagor  was  not 
entitled  to  this  sum  received  by  the  mortgagees.  White 
V.  Brown,  2  Cush.  Mass.  412.     1848. 

§  24.  The  American  Mutual  Insurance  Company  in- 
sured the  plaintiffs  $22,000  upon  merchandise  in  New 
York,  and  afterwards  caused  itself  to  be  re-insured  to  the 
amount  of  $10,000  by  the  Mutual  Safety  insurance  Com- 
pany, upon  the  same  risk.  During  the  running  of  these 
policies  the  property  was  destroyed  by  fire,  and  the  Amer- 
ican Mutual  Insurance  Company  rendered  insolvent  there- 
by. Held,  that  the  plaintiffs  had  no  equitable  lien,  or 
preferable  claim,  upon  the  fiind  of  $10,000,  due  upon  the 
re-assurance,  as  that  fund  belonged  to  all  the  creditors  of 
the  insolvent  company,  ratably.  Herckenrath  v.  Ameri- 
can Ins.  Co.  3  Bai'b.  Ch.  N.  Y.  63.     1848. 

§  25.  Where  mortgagor  effected  insurance,  and  as- 
signed policy  to  mortgagee,  and  mortgagee  recovered  from 
insurance  company  more  than  enough  to  pay  his  debt; 
Held,  that  as  to  the  balance  he  was  trustee  of  the  mort- 
gagor.  .Smith  V.  Packard,  19  N.  H.  576.    1849. 

§  26.  Warehousemen,  who  were  also  members  of  a 
transportation  company,  after  making  an  insurance  for  the 
benefit  of  the  transportation  line  on  "  merchandise  gene- 
rally "  contained  in  their  warehouse,  received  a  lot  of  cotton, 
in  the  receipt  or  bill  of  lading  for  which  it  was  specified 
that  the  dangers  of  navigation,  fire,  <&c.,  were  excepted. 
The  consignees  of  the  same,  without  request  from  the  con- 
signors, had  previously  effected  insurance  on  other  portions 
of  the  same  lot  of  cotton,  but  not  on  the  lot  last  received. 


INTEBEST  m  POLICT. 


373 


A  portion  of  the  last  lot  was  destroyed  by  fire  in  the 
warehouse  aforesaid,  soon  after  its  receipt,  and  before  no- 
tice to  the  consignees  of  its  arrival.  HeM^  that  such  insur- 
ance by  the  warehousemen,  being  made  for  the  benefit  of 
the  carriers,  did  not  enure  to  the  benefit  of  the  owners  of 
the  cotton.  Steele  v.  Franklin  Fire  Ins.  Co.  17  Penn.  St. 
290.     1851. 

§  27.  An  insurance  upon  "  merchandise  generally,  in  a 
certain  warehouse,  for  whom  it  may  concern,"  protects  only 
such  interests  as  were  intended  to  be  insured  at  the  time 
of  the  execution  of  the  policy,  and  the  burden  of  proving 
that  his  property  was  intended  to  be  protected,  rests  upon 
him  who  asserts  it ;  and  it  will  not  be  sufficient  to  prove 
that  it  was  known  generally  that  the  insurance  in  ques- 
tion, made  by  the  warehousemen,  in  whose  store  the  prop- 
erty was  destroyed  by  fire,  was  for  the  benefit  of  all  their 
customers,  whether  as  a  warehouse  firm,  or  as  members  of 
the  transportation  line,  which  delivered  the  property  in 
question.  Steele  v.  Franklin  Fire  Ins.  Co.  17  Penn.  St, 
290.     1851. 

§  28.  A  purchaser  of  an  equity  of  redemption  insured 
the  property  in  his  own  name  and  for  his  own  benefit,  and 
received  the  insurance  money  within  the  year,  upon  thq 
destruction  of  the  property ;  Held^  on  a  bill  to  redeem, 
that  the  mortg  gor  was  not  entitled  to  have  the  insurance 
money  so  paid  applied  in  extinguishment  of  his  debt. 
Cushing  V.  Thompson,  34  Me.  496.     1 852. 

§  29.  By  an  order  of  the  Court  of  Chancery,  the  re- 
ceiver of  certain  real  estates  was  directed  to  pay  certain 
fire  insurances  on  them ;  and,  by  a  subsequent  decree,  it 
was  declared  that  H.  was  tenant  in  tail  in  possession  of 
real  estates,  and  the  receiver  was  directed  to  pay  the  bal- 
ances to  the  account  of  H.,  and  a  fire  having  taken  place ; 
Held^  that  H.  was  entitled  to  the  insurance  money. 
Seymour  v.  Vernon,  10  Eng.  Law  &  Eq.  40;  16  Jur.  189. 
1852. 

§  30.  Policy  to  A.  <fe  Co.,  though  there  was  no  such 
firm  at  the  time  of  its  execution,  but  B.  was  heir  at  law 
of  a  former  partner  of  A.,  then  dead ;  Held^  1st,  that  B. 
had  no  interest  in  the  policy,  and  A.,  if  the  policy  was 


w 


374 


INTEBEST  tV  POUOY. 


good  as  to  his  interest,  could  not  sue  jointly  with  B. ; 
and,  2d,  that  parol  testimony  to  show  that  the  insurance 
company  was  apprised  of  the  state  of  the  title,  when 
the  policy  was  made,  was  inadmissible.  Work  v.  Mer- 
chants' &  Farmers'  Mut.  Fire  Ins.  Co.  11  Cush.  Maes.  271. 
1853. 

§  31.  Where  a  lessee  covenants  to  erect  on  the  lease- 
hold premises  a  building  worth  a  specified  sum,  and  to 
keep  the  premises  insured,  and  after  the  building  is 
erected  the  builder  obtains  a  decree  in  a  court  of  chancery 
upon  his  contract  of  building,  under  which  decree  he 
enters  into  possession  of  the  premises  without  a  sale,  his 
possession  is  unauthorized  and  permissive  only,  and  does 
not  make  him  an  assignee  of  the  lease,  so  as  to  render  him 
liable  on  the  covenants  contained  in  it.  And  if  the 
builder,  while  thus  in  possession,  insure  the  premises  to 
the  extent  of  his  interest  in  the  lease,  the  policy  does  not 
enure  to  the  benefit  of  the  lessor  or  his  assigns,  nor  does 
it  muke  the  builder  liable  on  the  coven"  it  of  insurance 
contained  in  the  lease.  Merchants'  Ins,  Jo.  v.  Masango, 
22  Ala.  168.     1853. 

§  32.  The  interest  of  the  vendor  of  real  property,  in 
a  policy  of  insurance  against  fire,  effected  by  the  vendor 
previous  to  the  sale,  passes  by  operation  of  law  to  the 
purchaser,  the  sale  being  notified  to  the  company ;  and  a 
payment  made  by  the  insurance  company  to  the  vendor, 
on  a  loss  occurring  after  the  sale,  of  a  sum  greater  than 
the  balance  of  the  purchase  money  remaining  unpaid,  en- 
ures to  the  benefit  of  the  purchaser  as  a  discharge  from 
such  balance.  Le  Claire  v.  Crapser,  5  Lower  Canada  S. 
C.  Montreal,  487.    1853. 

§  33.  Action  cannot  be  maintained  to  recover  money 
received  by  the  defendant  from  an  insurance  company 
under  a  policy  effected  by  him  in  his  own  name  on  certain 
property,  some  of  which  belonged  to  the  plaintiffs ;  when 
the  money  was  not  received,  either  in  whole  or  in  part,  on 
account  of  plaintiff's  property,  and  their  property  was  not 
in  fact  covered  by  the  policy.  Turner  v.  Stetts,  28  Ala. 
420.     1856. 

§  34.    Where  property  insured  by  the  vendor  was 


INTEBEST  m    POLIOT. 


375 


sold,  and  the  policy  not  assigned  to  the  vendee,  the  latter 
cannot,  after  a  loss,  recover  from  the  vendor  the  amount 
of  insurance  collected  by  him.  King  v.  Preston,  11  La. 
An.  95.     1856. 

§  36.  A  testator  gave  his  personal  estate  to  his  widow, 
and  devised  his  real  estate  to  his  executors  in  trust.  At 
the  time  of  his  decease,  there  was  an  outstanding  policy 
of  insurance  against  loss  by  fire,  on  some  buildings  owned 
by  the  testator,  and  after  his  death  a  loss  occurred,  and 
the  amount  of  damage  was  paid  to  the  executors  under 
the  policy.  The  widow  claimed  this  sum  as  part  of  the 
personal  estate.  Held,  that  the  money  from  such  insurance 
must  be  taken  and  held  by  the  executors,  upon  the  same 
trusts  as  those  upon  which  they  held  the  subject-matter 
itself,  and  that  the  widow  had  no  such  interest  as  to  en- 
title her  to  the  money.  Eagle  v.  Emmett,  4  Bradford, 
(Surrogate's  Court,  N.  Y.)  117.     1856. 

§  36.  If,  upon  a  general  survey  of  the  provisions  of 
the  policy,  and  the  circumstances  under  which  it  was  pro- 
cured, it  appears  that  the  intention  of  the  company  was 
to  insure,  for  tlie  benefit  of  any  person,  an  interest  not 
named,  the  common  interest  of  the  parties  will  not  be 
defeated  for  the  want  of  technical  or  even  customary, 
phrases;  if,  on  the  other  hand,  the  most  natural  con- 
struction of  the  policy  is  that  the  party  named  as  the  as- 
sured only  sought  to  protect  his  own  interest,  the  contract 
is  not  to  be  extended  so  as  to  cover  the  interest  of  a  third 
person.  Duncan  v.  Sun  Mut.  Ins.  Co.  1 2  La.  An.  486. 
1857. 

§  37.  L.  purchased  a  lot  of  sugars  from  M.,  and  paid 
$8,000,  on  account,  leaving  the  sugars  in  the  store  of 
M.  until  he  was  ready  to  take  them  away.  He  then  ef- 
fected insurance  upon  them  in  his  own  name,  and  this 
action  was  brought  to  recover  of  M.  the  premium  for  the 
same,  and  other  e2q)enses.  Held^  that  the  property  before 
it  was  weighed  or  delivered,  was  at  the  risk  of  M.,  and 
L.  could  not  insure  it  for  him,  and  was  not  therefore  en- 
titled  to  recover  from  M.  the  premium,  paid  by  him,  for 
the  insurance.  Orguerre  v.  Luling,  1  Hilton,  N.  Y.  383. 
1857. 


t 


376 


INTEREST  IN    POLICT. 


§  38.  If  mortgagee  insures  with  his  own  funds,  for 
his  own  exclusive  benefit,  the  insurance  money  paid  on 
the  loss  is  not  in  discharge  of  the  mortgage ;  ^  ut  if  he 
insures  at  the  request,  and  for  the  benefit  of  the  mort- 
gagor, as  well  as  himself,  the  money  paid  is  in  discharge 
of  the  mortgage  indebtedness.  Concord  Mut.  Fire  Ins.  Co. 
V.  Woodbury,  45  Me.  447.     1858. 

§  39.  An  executory  agreement  by  the  mortgagor,  to 
insure  for  the  benefit  of  the  mortgagee,  gives  to  the  latter 
an  equitable  lien  upon  the  money  due  upon  the  policy, 
taken  out  by  the  former,  on  the  mortgaged  premises,  in 
his  own  name,  to  the  extent  of  the  interest  of  the  mort- 
gagee therein,  which  a  court  of  equity  will  enforce  to  the 
satisfaction  of  the  amount  due  upon  the  mortgage.  Nicols 
V.  Baxter,  5  R  I.  491.     1858. 

§  40.  The  deposit  of  a  policy  of  insurance  with  a 
creditor  of  the  assured,  as  security  for  the  debt,  collateral 
or  original,  cives  the  creditor  a  lien  on  the  proceeds  of  the 
policy,  which  lien  is  binding  upon  the  underwriters  and 
upon  the  insured,  and  upon  all  those  who  take  an  interest 
from  the  assured,  with  notice  of  such  lien.  Ellis  v.  Kreut- 
ginger,  27  Mo.  311.    1858. 

§  41.  A  manufacturer  of  clothing  eflfected  insurance 
on  his  own  goods  and  "  goods  held  by  him  in  trust." 
When  the  loss  occurred  he  made  claim  for  and  received  of 
the  insurers  payment  of  his  own  goods  only,  which  were 
of  a  greater  value  than  the  sum  insured.  Another  party 
who  nad  left  cloth  with  assured  to  be  manufactured,  then 
claimed  of  assured  a  portion  of  the  insurance  money  re- 
ceived by  him ;  but  it  appearing  that  he  had  not  adopted 
or  ratified  the  insurance  made  by  assured,  that  he  did  not 
even  know  of  its  existence  until  after  the  loss,  and  until 
after  the  assured  had  made  claim  for  the  loss  of  his  own 
goods  only ;  Held,  that  under  the  circumstances  the  assured 
alone  were  entitled  to  the  monejr  received ;  that  their 
election  to  claim  for  the  loss  of  their  own  goods  only,  was 
equivalent  to  an  election  to  cancel  so  much  of  the  policy 
as  purported  to  insure  goods  "held  by  them  in  trust," 
which  they  were  at  entire  liberty  to  do.  Stillwell  v. 
Staples,  19  N.  Y.  401.  1859.  Reversing  6  Duer,  N.  Y. 
63,  1856,  on  this  point. 


INTEBE8T  IN  POLICY. 


877 


§  42.  Policies  of  insurance  are  not  deemed,  in  their 
nature,  incidents  to  the  property  "insured ;  and  do  not 
cover  any  interest  which  a  person  other  than  the  insured 
may  have  in  the  property,  as  heir,  grantee,  mortgagee  or 
creditor,  unless  there  be  a  valid  assignment  of  the  policy. 
Wyman  v.  Prosser,  36  Barb.  N.  Y.  368.     1862. 

§  43.  A  contract  of  insurance,  being  a  mere  personal 
contract,  in  no  way  attached  to  or  running  with  real  prop- 
erty that  may  be  insured,  does  not  pass  with  such  prop- 
erty either  to  a  grantee  or  an  heir.  The  executor  or  ad- 
ministrator is  the  only  one  who  can  take  the  contract  and 
enforce  it.     Wyman  v.  Prosser,  36  Barb.  N.  Y.  368.    1862. 

§  44.  Where  a  policy  is  procured  by  the  insured  for 
their  own  protection,  and  in  respect  to  property  in  which 
they  claim  an  ownership,  they  may  recover  thereon,  al- 
though it  is  expressed  to  be  for  account  of  whom  it  may 
concern.  Mayor,  &c.  of  N.  Y.  v.  Hamilton  Fire  Ins.  Co. 
10  Bosw.  N.  Y.  537.     1863. 

§  45.  Where  a  person  who  has  effected  an  insurance 
against  fire  upon  his  house,  dies,  the  interest  in  the  policy 
devolves  upon  his  heirs-at-law,  and  in  case  of  loss  the 
damages  accrue  to  them.  Wyman  v.  Wyman,  26  N.  Y. 
117.     1863. 

§  46.  Where  the  plaintiffs,  as  mortgagees,  procure  a 
policy  on  their  interes^t  in  the  mortgaged  property,  and 
the  policy  contains  the  usual  apportionment  provision, 
and  a  subsequent  mortgagee  procures  an  insurance  in  an- 
other company  on  the  same  property,  the  plaintiffs,  in  case 
of  loss,  are  not  liable  to  be  apportioned  with  such  subse- 
quent mortgagee,  but  are  entitled  to  recover  the  whole 
amount  insured  by  them,  being  less  than  the  loss  or  dam- 
age to  the  property.  Fox  v.  Phenix  Fire  Ins.  Co.  52  Me. 
333.     1864. 

§  47.  Where  a  policy,  when  made,  covers  the  interest 
of  one  partner  only,  the  remaining  interest  cannot  be 
brought  within  it  by  the  partner  insured  subsequently  be- 
coming the  owner  of  the  whole.  Peoria  Marine  &  Fire 
Ins.  Co.  V.  Hall,  12  Mich.  202.     1864. 

§  48.    An  agent  may  effect  an  insurance  in  his  own 


p 


I 


378 


DTTEBEST  IS  POLICT. 


name  for  the  benefit  of  the  owner,  without  giving  the 
name  of  the  owner  of  the  goods,  but  the  words  of  the  pol- 
icy  must  sufficiently  indicate  such  intention.  The  word 
"  agent"  attached  to  the  name  of  the  person  assured,  im- 
ports that  he  is  acting  for  an  imdisclosed  principal ;  and 
parol  evidance  is  admissible  in  such  case  to  show  for  whose 
benefit  the  insurance  is  effected.  Plahto  v.  Merchants'  & 
Manufacturers'  Ins.  Go.  88  Mo.  248.     1866. 

§  49.  A  mortgagee  of  a  building  whose  interest  therein 
is  insured  by  a  policy  which  provides  that,  in  case  of  pay- 
ment of  any  loss  to  him,  he  shall  assign  to  the  company 
so  much  of  his  interest  in  the  mortgage  as  may  not  be 
necessary  to  extinguish  the  residue  of  the  debt  due  there* 
on,  may  recover  the  full  amount  insured,  although  before 
the  date  of  the  policy  he  had  entered  into  a  written  agree- 
ment to  convey  the  premises  insured  to  a  person  who,  by 
the  terms  of  the  same  agreement,  was  to  be  at  the  expense 
and  have  the  benefit  of  the  insurance,  and  who,  after  the 
date  of  the  policy  and  before  the  loss,  had  recognized  the 
policy  by  paying  the  expense  thereof.  Davis  v.  Quincy 
Mut.  Fire  Ins.  Co.  10  Allen,  Mass.  113.    1865. 

§  50.  A.  being  indebted  to  B.,  conveys  to  him  lands 
in  trust  to  sell,  and  after  paying  his  own  debt  to  pay  over 
any  surplus  to  A.  B.  having  insured  a  mill  on  part  of 
these  trust  premises,  and  having  received  the  insurance 
money  therefor ;  Qumre^  whether  he  was  accountable  to 
A.  for  it.  Semhle^  that  he  was  not.  McPherson  v.  Proud- 
foot,  2  U.  C,  Com.  PI.  67.     1852. 

§  51.  A  lessee  not  compelled  nor  authorized  to  obtain 
insurance  for  the  benefit  of  lessor  has  obtained  insurance, 
loss  payable  to  lessor,  and  afterwards  assigned  his  lease 
to  a  third  party.  Heldy  no  recovery  could  be  had  on  the 
policy  by  lessor  (nor,  semhle,  W  lessee).  Hidden  v.  Slater 
Mut.  F.  Ins.  Co.  2  Clifford  C.  C.  266.     1864. 

§  52.  The  arrangement  transferring  the  policy  for  the 
benefit  of  creditors,  the  premium  remaining  undiminished 
and  subject  of  insurance  unchanged,  does  not  limit  the 
liability  to  the  amount  of  the  creditor's  interests.  Eureka 
Ins.  Co.  V.  Eobinson,  56  Pa.  St.  266.     1867. 


§: 


UTTEEEST  IN   POLIOY. 


879 


\ 


§  53.  Insurance  for  the  benefit  of  others  than  the 
party  effecting  the  insurance  is  not  equivalent  to  "  for 
whom  it  may  concern,"  because  it  does  not  include  all 
interests  but  only  those  intended  to  be  insured,  which  the 
party  effecting  the  insurance  may  show  by  extrinsic  evi- 
dence.   Lee  V.  Adsit,  37  N.  Y.  78.    1867. 

§  54.  A  purchaser  having  a  bond  for  title,  on  pay- 
ment of  balance  of  purchase  mo'iey  obtained  insurance  on 
his  interest,  and  afterwards  assigned  both  the  bond  for  a 
title  and  the  policy  to  another,  who  on  a  loss  collected 
the  insurance  money.  Held,  the  original  vendor,  who  had 
a  lien  for  unpaid  purchase  money,  cannot  require  any  part 
of  the  insurance  money,  for  that  the  insurance  was  only 

Jrocured  to  protect  the  vendee's  interest.    Hammer  v. 
ohnson,  44  111.  192.    1867. 

§  55.  The  mortgagor  insuring,  though  he  does  so  in  the 
name  of  the  mortgagee,  yet,  after  paying  the  debt,  may 
recover  for  loss,  as  he  has  an  insuraole  interest,  thougn 
semble,  that  mortgagee  having  insured  and  being  paid  the 
loss,  the  company  are  subrogated  to  his  rights  under  the 
mortgage,  the  insurance  being  a  further  security,  and  the 
company  a  surety,  who,  paying  the  debt,  can  call  on  the 
principal  debtor  for  it.  Norwich  F.  Ins.  Co.  v.  Boomer,' 
52  111.  442.     1869. 

§  56.  Under  a  contract  for  the  sale  of  real  estate,  the 
vendee  was  to  keep  it  insured  for  the  vendor's  benefit,  but 
procured  the  insurance  in  his  own  name,  the  vendor  has 
an  equitable  lien  on  the  fund,  and  having  assigned  his 
rights  to  the  plaintiff,  the  latter  was  held  entitled  to  re- 
cover the  amount  of  his  interest  from  the  company,  it 
having  paid  the  amount  to  the  vendee  after  being  noti- 
fied not  to  do  so  by  plaintiff. 

Such  claim  is  not  an  assignment  of  the  policy,  which 
is  forbidden  by  that  instrument,  the  liability  not  being 
founded  on  an  assignment,  but  on  an  equitable  lien,  the 
insurer  becoming  a  trustee  after  notice.  Cromwell  v. 
Brooklyn  F.  Ins.  Co.  5  Hand.  42.    1870. 

§  57.  A  policy  is  valid  although  the  assured  is  not 
named  in  it,  and  if  the  designation  of  the  assured  is  am- 


ill 

I? 


880 


LIEN. 


bi^uous  or  applicable  to  several,  extrinsic  evidence  is  ad- 
missible to  snow  who  were  in  the  minds  of  the  parties 
when  making  the  contract,  and  these  will  bo  deemed  the 
assured.  The  words  "  estate  of  D.  Boss,"  as  the  descrip- 
tion of  the  assured,  are  not  used  techni'^ally  to  mean  the 
administratrix's  interest  only,  .she  having  applied  for  in- 
surance for  the  widow  and  children.  (Affirming,  s.  o.  51 
Barb.  647.)    Clinton  v.  Hope  Ins.  Co./6  Hand.  454.   1871. 

§  58.  Policy  to  "  E.  B.,  executrix,"  insured  property 
devised  to  the  executrix  and  children.  Ileldy  that  the 
meaning  of  "  executrix "  being  ambiguous  may  be  deter- 
mined by  extrinsic  evidence ;  that  evidence  of  the  conver- 
sation oi  the  assured's  agent  with  the  underwriter  in  rela- 
tion to  the  beneficiaries  of  the  policy  is  admissible  with  a 
view  either  to  the  reformation  or  interpretation  of  the 
contract.    Globe  Ins.  Co.  v.  Boyle,  2 1  Oh.  St.  119.    1871. 

§  59.  A  policy  "  to  the  heirs  and  representatives  of 
A.  K.  dec'd,"  when  the  legal  title  was  in  the  widow  as  ex- 
ecutrix and  trustee  under  A.  K.'s  will ;  Held^  she  may 
be  considered  as  described  by  the  words  "  heirs  and  re- 
presentatives," which  meant  any  one  taking  by  descent 
or  will  from  A.  K.  Savage  v.  Long  Island  Ins.  Co.  43 
How.  Pr.  462.     1872. 

Sco  Alienation,  §  40,  61.  Aesignments,  89,  40.  Covenants  to  Insure,  5. 
Goods  in  Trust  or  on  Commission,  5,  13,  17.  Insurable  Interest,  63.  Mort- 
gagor and  Mortgagee,  4.  Re-Insurance,  8.  Subrogation,  16.  Who  may 
Sue,  28. 


LIEN. 

§  1.  Under  statute  of  Vitgina  of  1794,  property  con- 
tinues liable  to  assessments  after  it  has  passed  into  the 
hands  of  a  bona  fide  purchaser.  And  this  lien  is  not 
aflfected  by  cession  of  District  of  Columbia  to  United 
States.  Mutual  Assuracce  Society  v.  Watts,  1  Wheat. 
U.  S.  279.     1816. 

§  2.  The  lien  for  quotas  in  the  Mutual  Assurance 
Society  of  Virginia,  for  insurance  on  buildings  in  Alexan- 


UEN. 


381 


dria,  was  not  affected  by  the  separation  of  Alexandria 
from  Virginia,  but  continued  on  such  buildings  in  Dist- 
rict of  Columbia.  The  liability  of  assured  for  assessments 
does  not  cease  in  consequence  of  forfeiture  of  his  policy, 
by  his  own  neglect ;  and  under  the  regulations  of  the  so* 
ciety  he  is  liable  for  an  extra  premium,  because  of  in- 
creased hazard.  Kom  v.  Mutual  Assurance  Society,  6 
Cranch,  U.  S.  192,  and  1  Cranch,  U.  8.  396.  1801.  See 
also,  Atkinson  v.  Mutual  Assurance  Society,  6  Cranch, 
U.  S.  202.    1801. 

§  3.  A  lien  for  quotas  under  act  of  1794,  and  for  ad- 
ditional premiums  under  act  of  1805,  and  for  contribu- 
tions under  acts  of  1809  and  1819,  of  Virginia,  attaches 
to  and  follows  the  property  insured  in  hands  of  purchaser, 
without  notice.  Mutual  Assurance  Society  v.  Stone,  3 
Leigh,  Va.  218.    1821. 

§  4.  Under  the  law  of  Virginia  f  <  uching  the  Mutual 
Assurance  Society,  after  the  death  of  a  member,,  his  heirs 
are  liable  for  contributions  till  dower  is  sol  off,  then  the 
widow  is  liable  until  she  parts  with  her  life  estate,  but  if 
she  conveys  away  her  life  estate,  the  purchaser  is  liable 
after  the  purchase.  None  are  personally  liable  except 
for  contributions  accruing  during  the  time  they  hold  the^ 
property,  but  a  lien  for  all  contributions,  with  interest, 
exists  against  the  entire  property,  but  not  for  damages. 
In  case  of  sale,  however,  a  division  of  what  is  due  should 
be  made  between  the  several  parties  interested,  with  ref- 
erence to  the  settlement  of  accounts  between  them. 
Shirley  v.  Mutual  Assurance  Society,  2  Rob.  Va.  705. 
1844. 

§  5.  Bill  to  enforce  company's  lien  against  heirs  of 
assured,  nothing  being  due  at  his  death.  Descent,  held 
to  be  an  "  alienation '  within  the  meaning  of  the^  char- 
ter which  divested  the  lien,  and  bill  dismissed.  Indiana 
Mut.  Fire  Ins.  Co.  v.  Chamberlain,  8  Blackf.  Ind.  150. 
1846. 

§  6.  Alienation  of  property  insured,  by  deed  or  mort- 
gage, destroys  company's  lien  for  payment  of  premium 
note.    McCulloch  v.  Inaiana  Mut.  Fire  Ins.  Co.  8  Blackf 


382 


JAQWISISO. 


Ind.  50.    1846.    Indiana  Mut.  Fire  Ins.  Co.  v.  Coquillard, 
2  Cart.  Ind.  645.     1851. 

§  7.  The  plaintiffs  were  a  company  existing  in,  and 
chartered  by,  tne  State  of  New  York,  for  the  purpose  of 
carrying  on  the  business  of  mutual  insurance  in  the 
county  of  Genesaee.  Their  charter  provided  that  the 
company  should  have  a  lien  by  way  of  mortgage  on  the 
property  insured,  and  upon  the  right,  title  and  interest 
of  the  assured  to  the  land  upon  which  such  property 
stood. 

The  defendant  was  a  British  subject,  residing  in  Can- 
ada, and  the  contract  was  entered  into  in  Canada.  Jleldj 
that  the  company,  from  the  ver;^^  nature  and  objects  of  its 
charter,  was  incapable  of  carrying  on  its  business  in  this 
province;  and  that  a  foreign  legislature  could  make  no 
law  creating  a  lien  on  legal  estate  in  Canada,  and  conse- 
quently that  any  contract  founded  on  such  a  consideration 
was  void  ab  initio.  Genessee  Mut.  Ins*  Co.  v.  Westman, 
8  Upper  Canada,  Q.  B.  487.    1851. 

§  8.  A  judgment  which  is  limited  in  its  effect,  and 
does  not  extend  to  the  insured  property,  is  not  a  "  lien," 
within  the  meaning  of  the  interrogatory  relative  to  encum- 
brances, and  will  not  avoid  a  policy  of  insurance  which 
issued  upon  a  negative  answer  by  the  party  insured  to  such 
interrogatory.  Somerset  Ins.  Co.  v.  McAnally,  46  Penn. 
St.  41.     1863. 


See  Alienation,  §  88. 
Dividends,  3. 


Dependency  of  Policy  and  Premium  Kote,  14. 


LIGHTNING. 

§  1.  The  act  of  incorporation  constituted  certain  per- 
sons a  body  politic,  "for  the  purpose  of  insuring  their 
respective  dwelling-houses,  with  their  contents,  against 
loss  or  damage  by  fire,  whether  the  same  shall  happen  by 
accident,  lightning,  or  by  any  other  means,"  &c. ;  and  by 
the  terms  of  the  policy  the  company  were  to  pay  within 


LIMITATION  CLAUSE. 


383 


a  specified  time  after  the  property  should  be  burnt,  de- 
stroyed, or  demolished,  "by  reason  or  by  means  of  fire;" 
HeM^  that  a  damage  caused  by  lightning  only,  without 
any  combustion,  was  not  a  loss  within  the  policy.  Ken* 
niston  v.  Merrimack  County  Mut.  Ins.  Co.  14  N.  H.  341. 
1843. 

§  2.  Where  policy  insured  against  fire  generally,  and 
a  separate  clause  declared  that  the  insurers  would  be  lia- 
ble for  fire  by  lightning ;  Heldy  that  the  company  was  not 
liable  where  a  house  was  only  rent  and  torn  to  pieces  by 
lightning  without  being  ignited  or  any  actual  combustion 
taking  place ;  the  insurance  being  against  fire  in  the  ordi- 
nary and  popular  meaning  of  the  term.  Babcock  v.  Mont- 
gomery County  Mut.  Ins.  Co.  6  Barb.  N.  Y.  637.  1849. 
Affirmed,  4  Comst.  N.  Y.  326.     1850. 

§  3.  A  corporation,  authorized  by  its  charter,  to  in- 
sure against  fire,  whether  caused  by  "  accident,  lightning, 
or  any  other  means,"  cannot  insure  against  damage  by 
lightning,  not  resulting  in  fire,  although  their  by-laws  pro- 
vide for  their  so  doing.  Such  an  insurance  would  be  be- 
yond the  corporate  authority.  Andrews  v.  Union  Mut. 
Ins.  Co.  37  Me.  256.     1854. 


!lll 


;,| 


W^ 


LIMITATION  CLAUSE. 

§  1.  Bill  in  equity  to  i-ecover  the  amount  of  a  policy 
of  insurance.  Policy  provided  that  no  suit  or  action  m  law 
or  chancery  shall  be  sustained,  unless  commenced  within 
twelve  months  after  the  cause  of  action  shall  accrue. 
HeViy  that  the  stipulation  went  to  the  right,  as  well  as  the 
remedy  ;  and  the  liability  of  the  company  did  not  become 
absolute,  unless  the  remedy  was  sought  within  the  period 
limited ;  and  that  a  plea  of  the  same  was  a  conclusive  answer 
to  the  suit.  Cray  v.  Hartford  Fire  Ins.  Co.  1  Blatchf.  C. 
C.  U.  a.  280.     1848. 

§  2.    By  the  fifteenth  condition  annexed  to  the  policy, 


384 


UMirATION  CLAUSE. 


it  was  declared  "  that  no  suit  or  action  of  any  kind  against 
the  insurers  for  the  recovery  of  any  claim  under  the  policy, 
should  be  sustained  in  any  court  of  law  or  chancery,  unless 
such  suit  or  action  should  be  commenced  within  the  term 
of  twelve  months  next  after  the  cause  of  action  accrued," 
&c.  Jleldj  that  this  was  a  condition  subsequent — the  sub- 
ject of  a  plea ;  that  an  allegation  in  a  count  upon  a  policy 
containing  this  condition,  that  the  insurers  had  no  mayor, 
president,  <fec.,  upon  whom  process  could  be  served,  was 
mere  surplusage.  This  condition  being  the  subject  of  a 
plea,  an  averment  in  the  declaration  that  the  insurers  had 
waived  it,  would  not  be  traversable ;  therefore,  it  might 
be  passed  by  without  notice.  Heldj  also,  that  it  could  not 
be  waived — that  lapse  of  time  extinguished  the  liability 
of  th«  insurers,  which  could  not  be  revived  by  a  waiver ; 
but,  semble,  that  they  might  dispense  with  the  condition 
by  deed,  and  if  a  deed  could  avail  as  a  dispensation,  it 
should  be  replied  to  a  plea  of  the  condition.  Held,  also, 
that  the  condition  was  valid  in  law,  and  operated  as  an 
effectual  bar  everywhere :  therefore,  a  plea  of  the  fifteenth 
condition,  to  a  count  containing  an  averment  of  waiver  of 
this  condition,  was  properly  pleaded.  A  replication  to 
such  a  plea,  that  the  defendants  were  a  foreign  corporation, 
and  that  no  action  could  have  been  sustained  within  the 
twelve  months  unless  they  had  voluntarily  appeared,  and 
there  was  no  means  of  compelling  their  appearance,  al- 
though the  plaintiff  was  willing  to  prosecute  within  the 
twelve  months,  was  bad,  as  it  neither  confesses  nor 
avoids  anything  material,  for  the  plaintiff  might  have 
sued  out  process  within  the  twelve  months,  or  the  defend- 
ants might  have  been  sued  in  the  country  where  they 
were  incorporated,  and  they  were  not  estopped,  by  volun- 
tarily appearing,  from  setting  up  a  lapse  of  time  as  a  de- 
fense. Ketchura  v.  Protection  Ins.  Co.  1  Allen,  N.  B.  136. 
1848. 

§  3.  Williams  and  Bliss  were  insured  jointly.  The 
directors  refused  to  pay  the  loss,  on  the  ground  that  Wil- 
liams was  indicted  for  setting  fire  to  the  property.  After- 
wards the  directors  voted  to  pay  Bliss  his  share  of  the  loss 
on  the  ground  that  he  was  not  implicated  in  the  fraud.  The 
charter  provided,  that  unless  suit  was  brought  within  a  cer- 


LIMITATION  CLAUSE. 


385 


tain  time  after  tlie  determination  of  the  directors,  the  claim 
should  be  barred.  The  time  within  which  suit  must  be 
brought  had  elapsed,  counting  from  the  time  of  the  first 
determination  of  the  directors  not  to  pay,  but  had  not 
elapsed  from  the  time  of  the  allowance  to  Bliss.  Held,  in 
an  action  by  Williams,  that  the  time  must  be  reckoned 
from  the  time  of  the  first  determination  of  the  directors 
not  to  pay,  and  that  the  payment  to  Bliss  did  not  revive 
the  claim,  nor  take  it  out  of  the  limitations ;  and  that  the 
cause  of  action  was  not  capable  of  being  revived  by  an 
acknowledgment  or  new  promise.  Williams  v.  Vermont 
Mut.  Fire  Ins.  Co.  20  Vt.  222.     1848. 

§  4.  Where  the  policy  limited  the  time  for  bringing 
an  action  after  the  loss,  the  mere  fact  that  at  various  times 
there  were  negotiations  between  the  parties,  with  a  view 
of  referring  to  arbitrators  the  matter  in  dispute  between 
them,  and  without  any  express  agreement  to  suspend  legal 
remedies,  to  await  the  issue  of  these  negotiations,  does  not, 
in  the  absence  of  fraud  upon  the  part  of  the  company,  de- 
feat the  clause  of  limitation.  Gooden  v.  Amoskeag  Fire 
Ins.  Co.  20  N.  H.  Y3.     1849. 

§  6.  Where  policy  provided  that  suit  must  be 
brought  within  a  certain  time  after  a  loss  had  occurred ; 
Held,  that  such  condition  was  invalid  and  not  binding  on' 
the  assured.  Eagle  Ins.  Co.  v.  Lafayette  Ins.  Co.  9  Ind. 
443.  1857.  French  y.  Lafayette  Ins.  Co.  5  McLean,  C. 
C.  U.  S.  4GI.     1853. 

§  6.  Where  policy  stipulated  that  suit  for  any  loss 
should  be  brought  within  twelve  months  next  after  such 
loss  or  damage  had  occurred,  and  assured  did  bring  suit 
within  the  twelve  months,  but  wn.^  non-suited,  and  did 
not  commence  a  second  suit  until  after  the  twelve  months 
had  expired ;  Held,  that  he  was  barred  by  the  clause  of 
limitation  of  time  for  commencing  suit,  and  could  not  re- 
cover. Wilson  v.  iEtna  Ins,  Co.  of  F.  Y.  27  Vt.  99. 
1854. 

§  7.  Where  insurers,  by  holding  out  to  assured  hopes 
of  an  amicable  adjustment,  have  themselves  caused  the 
delay,  they  cannot  take  advantage   of  a  stipulation  in 


! 


386 


LIMITATION  CLAUSE. 


the  policy,  that  suit  shall  be  brought  within  twelve 
monnis  next  after  a  loss  and  damage,  or  claim  shall  be 
barred.     Grant  v.  Lexington  Ins.  Co.  5  Ind.  23.     1854. 

§  8.  One  of  the  conditions  of  a  policy  of  insurance 
was  that  no  action  should  be  brought  under  it  against  the 
company,  unless  within  twelve  months  after  the  right  ac- 
crued. *  The  plaintiff  alleged  a  waiver  of  this  condition ; 
and  relied  upon  an  alleged  conversation  between  his  agent 
and  the  president  of  the  company.  Held^  that  the  condi- 
tion could  not  be  so  waived,  and  that  such  evidence  was 
properly  rejected.  And  where  the  secretary  of  the  com- 
pany wrote  to  the  agent  of  assured,  saying,  "  I  am  desired 
by  the  president  and  board  of  directors  to  acquaint  you, 
that  the  party  having  failed  in  substantiating  any  claim 
for  loss  by  accident  or  misfortune,  as  required  by  the  con- 
ditions of  the  policy,  the  board  is  not  disposed  to  admit 
the  same ; "  Held^  that  such  letter  contained  no  evidence 
of  a  "Waiver  of  this  condition.  Lampkin  v.  Western  Assur- 
ance Co.  13  Upper  Canada,  Q.  B.  237.     1865. 

§  9.  A  provision  of  the  act  of  incorporation  requiring 
action  to  be  brought  within  a  specified  time  after  directors 
shall  ascertain  and  determine  the  amount  of  loss,  applies 
where  directors  wholly  reject  the  claim;  and  failure  to 
bring  suit  within  the  time  mentioned  is  a  bar  to  any  ac- 
tion afterwards.  Dutton  v.  Vermont  Mut.  Fire  Ins.  Co. 
17  Vt.  369.  1845.  Portage  County  Mut.  Ins.  Co.  v.  West, 
6  Ohio  St.  599.     1856. 

§  10.  By  the  terms  of  the  plaintiff's  policy,  they  were 
insured  "  subject  to  the  provisions  and  conditions  of  the 
charter  and  by-laws"  of  the  insurance  company.  One  of 
the  cdbditions  required  suit  for  anv  loss  claimed,  to  be 
brought  within  a  specified  tiine,  and  m  a  particular  county. 
Heldy  that  that  part  of  the  by-laws  requiring  the  action  to 
be  brought  in  a  particular  county  was  invalid,  but  the 
part  referring  to  the  time  within  which  such  suit  must  be 
brought,  was  valid.  Held  further,  that  the  whole  by-law 
was  not  void  because  one  part  of  it  was  invalid,  as  the 
valid  part  could  be  separated  from  the  invalid,  and  carried 
into  effect.  Amesbury  v.  Bowditch  Mut.  Fire  Ins.  Co.  6 
Gray,  Mass.  596.    1856. 


LIMITATION  OLAIJSE. 


387 


§  11.  The  by-laws  of  a  mutual  insurance  company 
provided  that,  upon  the  happening  of  a  loss,  directors 
would  proceed  to  ascertain  the  liability  of  the  company, 
and  if  the  assured  did  not  acquiesce  in  the  determination 
of  the  directors,  he  should  within  a  certain  time  bring  an 
action  at  law  "  for  the  loss  claimed."  Held^  that  the  clause, 
by  its  terms,  was  confined  to  the  "  loss  claimed,"  leaving 
the  assured's  remedy  to  recover  the  amount  "  determined 
by  the  directors,  subject  to  no  limitation  other  than  that 
fixed  by  law ;  and  that  in  a  suit  for  the  "  loss  claimed," 
assured  might  amend  and  take  judgment  for  the  amount 
ascertained  and  determined  by  the  directors.  Amesbury 
V.  Bowditch  Mut.  Fire  Ins.  Co.  6  Gray,  Mass.  595.     1856. 

§  12.  Conditions  of  policy  provided,  Ist,  that  suit 
should  be  brought  within  six  months  from  date  of  loss ; 
2d,  that  the  company  should  have  ninety  days  after  proofs 
were  filed  to  pay  in.  Proofs  were  filed  in  nine  days  after 
loss,  to  which  company  excepted  eighty-five  days  sifter- 
wards,  and,  upon  correction,  insisted  on  ninety  days  more, 
Bnd  then  stood  suit  and  plead  the  six  months'  limitation. 
Held^  that  the  limitation  was  waived.  Ames  v.  N.  Y. 
Union  Ins.  Co.  14  N.  Y.  253.     1856. 

§  13.  Plaintiffs  insured  a  steamer  for  £1,500,  and  re-  ^ 
insured  with  defendants  for  £500,  under  a  policy  which 
provided  that  no  suit  should  be  maintained  thereon  un- 
less commenced  "  within  the  term  of  twelve  months  next 
after  any  loss  or  damage  shall  occur."  The  steamer  was 
injured  in  November,  1854,  and  the  plaintiffs  having  paid 
the  amount  claimed  on  the  9th  of  August,  1855,  brought 
this  action  on  the  8th  of  August,  1856,  to  recover  from 
the  defendants  their  proportion ;  Held^  too  late,  for  that 
the  "  loss  or  damage "  referred  to  in  defendant's  policy, 
was  the  injury  to  the  vessel,  not  the  payment  by  the 
plaintiffs.  Provincial  Ins.  Co.  v.  ^tna  Ins.  Co.  16  Upper 
Canada,  Q.  B.  135.     1858. 

§  14.  Where  policv  stipulated  that  no  suit  in  law  or 
chancery  shall  be  sustainable  unless  commenced  within  a 
certain  time  specified  next  after  the  happening  of  such 
loss  or  damage ;  Hdd^  that  such  condition  was  valid  and 
binding  on  assured.    Fullam  v.  New  York  Union  Ins.  Co. 


388 


LIMITATION  CLAUSE. 


7  Gray,  Mass.  61.  1856.  Brown  v.  Koger  "Williams  Ins. 
Co.  5  R.  I.  394.  1858.  Brown  v.  Hartford  Fire  Ins.  Co. 
5  R  I.  394.  1858.  Brown  v.  Savannah  Mut.  Ins.  Co.  24 
Georgia,  97.  1858.  North  Western  Ins.  Co.  v.  Phoenix 
Oil  <fe  Candle  Factory,  31  Penn.  St.  448.     1858. 

§  15.  Where  policy  provided  "that  no  suit  or  action 
at  law  or  in  equity  shall  be  maintained  against  the  com- 
pany, upon  or  by  virtue  of  this  policy,  unless  the  same 
shall  be  brought  within  six  months  from  the  time  of  the 
loss  or  damage  by  fire ;  and  after  the  expiration  of  six 
months  from  such  fire,  such  lapse  of  time  shall  be  conclu- 
sive evidence  against  the  validity  of  any  claim  under  this 
policy;"  Held^  that  the  stipulation  was  binding,  and 
proof  of  the  waiver  of  it  must  be  positive. 

An  attachment  execution,  served  on  the  insurance  com- 
pany before  the' expiration  of  the  six  months,  by  creditors 
of  assured,  will  not  excuse  the  failure  to  sue.  It  does  not 
follow  that  the  failure  to  sue  wdll  bar  the  recovery  under 
the  attachment  execution.  Schroeder  v.  Keystone  Ins.  Co. 
2  Philadelphia,  Pa.  286.    1858. 

§  1 6.  A  twelve  months'  statute  of  limitation,  although 
assented  to  by  the  parties,  operates  as  a  forfeiture.  It  is, 
therefore,  to  be  construed  strictly.  Slight  evidence  of 
waiver,  as  in  other  cases  of  forfeiture,  will  be  sufficient  to 
defeat  its  application.  "  A  positive  act  of  the  company  in- 
tended to  induce  postponements,"  is  not  necessary.  The 
court,  especially  to  aid  a  forfeiture,  and  a  very  harsh  one, 
too,  will  not  scrutinize  very  closely  the  verdict  of  a  jury 
on  such  a  point ;  nor,  the  rulings  of  the  judge  at  the  trial, 
unless  very  clearly  erroneous.  Ripley  v.  -^tna  Ins.  Co. 
29  Barb.  N.  Y.  552.     1859.,   See  §  27,  below. 

§  17.  Declaration  on  a  policy  of  insurance  alleged  to 
have  been  sealed  and  executed  by  defendants.  Plet.,  that 
the  policy  was  subject  to  a  condition  that  no  actioii  ^jld 
be  brought  on  it  except  within  six  months  from  tlo  .  ^3, 
and  that  the  plaintiff  did  not  sue  within  that  time.  ip- 
lication,  on  equitable  grounds,  that  when  the  loss  occur- 
red the  defendants  had  not  yet  issued  a  policy  to  the  plaint- 
iffs, although  he  had  previously  effiected  the  insurance 
with  them ;  that  although  requested  they  refused  to  exe- 


LIMITATION  CLAUSE. 


389 


cute  the  policy  until  after  the  commencement  of  this  action ; 
and  that  in  consequence  of  such  delay  he  was  prevented 
from  suing  within  six  months,  as  he  otherwise  would 
have  done,  Held^  that  the  replication  was  bad,  as  a  de- 
parture from  the  declaration,  and  as  showing,  in  eflfect, 
that  the  plaintiff  was  proceeding  upon  an  equitable  cause 
of  action. 

The  defendants  also  rejoined,  upon  equitable  grounds, 
that  long  before  the  expiration  of  six  months  from  the 
fire,  the  policy  was  executed  and  ready  for  delivery  to  the 
plaintiff,  of  which  he  had  notice,  and  defendants  never  re- 
fused to  execute  it,  nor  withheld  the  same  from  the  plaint- 
iff. Held^  good.  Hickey  v.  Anchor  Assurance  Co.  18 
Upper  Canada,  Q.  B.  433.     1859. 

§  18.  Policy  provided  "  that  no  suit  or  action  should 
be  maintained  in  any  court  of  law  or  chancery  for  any  loss 
or  damage  under  this  policy,  unless  such  suit  or  action 
shall  be  commenced  within  two  years  next  after  such  loss 
or  damage  shall  occur  and  become  due."  Another  clause 
provided  that  "  payment  of  losses  should  be  made  in 
ninety  days  after  proofs  hn  1  been  received  at  the  office  of 
the  company."  A  third  clause  required  assured,  in  case  of 
loss,  to  give  notice  forthwith,  and  "  as  soon  after  as  possi-^ 
ble  "  deliver  in  a  particular  account  of  such  loss  and  dam- 
age, &c.  Fire  occurred  on  the  21st  January,  1858,  and 
proofs  were  furnished  .on  the  25th  of  same  month.  Sub- 
sequently, on  the  1st  March,  plaintiff  finding  that,  in  con- 
sequence of  a  non-settlement  of  accounts  with  the  party 
against  whom  he  held  the  claim  insured,  he  had  not  cor- 
rectly stated  the  amount  of  his  interest,  made  further 
proof  and  sent  to  the  company.  Ileldy  1st,  that  the  clause 
limiting  the  time  for  bringing  action,  was  binding  and 
valid;  2d,  that  the  terms  "as  soon  as  possible,"  meant 
with  all  reasonable  diligence  under  the  circumstances  of 
the  case,  and  that  it  was  for  the  juiy  to  determine  whether 
such  diligence  had  been  used,  and  whether  the  proofs  had 
been  completed  fully  on  the  25th  January  or  not  until 
the  subsequent  proof  of  March  1st ;  and  whichever  period 
was  settled  upon  by  them,  they  must  then  allow  a  reason- 
able time  for  such  proofs  to  reach  the  office,  and  ninety 
days  after  that  time  for  the  commencement  of  the  two 


390 


LIMITATION  CLAUSE. 


years  in  which  the  suit  was  to  be  brought.  Longhurst  v. 
Conway  Fire  Ins.  Co.  U.  S.  D.  Ct.  Northern  Division, 
Iowa,  October  Term.     1861. 

§  19.  A  condition  of  policy,  requiring  suit  for  any 
loss  or  damage  under  the  policy  to  be  brought  within  a 
stipulated  time,  is  a  valid  condition,  but  under  the  code 
prior  to  the  Revised  Code  of  1860,  of  Iowa,  must  be  taken 
advantage  of  by  plea,  and  not  by  demurrer.  Carter  v. 
Humboldt  Fire  Ins.  Co.  12  Iowa,  28*7.    1861. 

§  20.  The  insurance  was  on  a  mechanic's  lien  interest, 
and  the  policy  contained  a  condition  requiring  suit  to  be 
brought  within  twelve  months  after  the  loss.  Imme- 
diately after  the  fire  an  action  was  brought  to  establish 
the  mechanic's  lien,  proofs  of  loss  were  furnished,  and  an 
action  was  brought  on  the  policy,  but  the  latter  was  not 
commenced  till  more  than  twelve  months  after  the  loss. 
Held^  that  in  ordinary  cases,  such  a  condition,  limiting 
the  time  within  which  suit  might  be  brought,  would  be 
valid  and  binding ;  but  that  in  regard  to  policies  of  insur- 
ance, as  well  as  all  other  contracts,  the  whole  contract  and 
all  its  pai'ts  are  to  be  construed  together ;  and  that,  as  it 
appeared  in  this  case  that  the  policy  required  proof  of  the 
value  of  the  interest  insured  to  be  made  before  payment 
of  the  loss  could  be  demanded,  and  as  the  best  and  indeed 
the  only  evidence  of  the  value  of  a  mechanic's  lien  is  the 
judgment  of  the  court  establishing  it,  and  as  the  suit  to 
establish  the  lien  appeared  to  have  been  prosecuted  with 
diligence,  this  condition  was  inoperative.  8tout  v.  City 
Fire  Ins.  Co.  of  New  Haven,  12  Iowa,  371.     1861. 

# 

§  21.  The  condition  of  policy  requiring  suit  for  any 
loss  or  damage,  under  the  policy,  to  be  brought  within  a 
stipulated  time,  held  valid  and  reasonable ;  though  there 
might  be  a  waiver  of  such  condition  by  the  conduct  of 
the  company.  Peoria  Marine  <fe  Fire  Ins.  Co.  v.  Whitehill, 
25  111.  466.     1861. 

§  22.  Where  a  period  of  limitation  is  stipulated  for 
in  a  policy  of  insurance,  it  is  binding  upon  the  parties ; 
and  the  provisions  and  qualifications  of  the  general  stat- 


LDDTATION   CLAUSE. 


391 


i 


ute  of  limitations  of  tlie  State  liave  no  application.  The 
court  have  no  right  to  import  into  the  contract  of  the 
parties  qualifying  terms  ^Vhich  they  have  not  seen  fit  to 
adopt,  ^rown  v.  Koger  Williams  Ins.  Co.  7  R.  I.  301. 
1862. 

§  23.  A  condition  in  a  policy  that  no  recovery  shall 
be  had,  unless  suit  is  brought  within  a  certain  time,  is 
valid.    Patrick  v.  Fdtmers'  Ins.  Co.  43  N.  H.  621.     1862. 

§  24.  Where  an  action  at  law  was  brought  ^n  a 
policy  within  the  period  of  limitation  fixed  by  such 
policy,  which  it  was  found  could  not  be  sustained  by 
reason  of  a  mistake  in  the  form  of  the  policy,  and  a  bill 
in  equity  was  brought  while  that  suit  was  pending,  and 
after  the  period  of  limitation  had  expired,  for  the  correc- 
tion of  the  policy,  and  for  an  injunction  against  the  defense 
set  up  in  tr  3  action  at  law;  Held,  that  the  suit  in  equity 
was  not  barred  by  the  expiration  of  the  time  limited. 
Woodbury  Savings'  Bank  v.  Charter  Oak  Ins.  Co.  31 
Conn.  518.     1863. 

§  25.  A  condition  in  a  policy  that  no  suit  shall  be 
brought  in  case  of  loss  unless  within  six  months  after  the 
loss,  is  valid  and  binding  on  the  insured.  Woodbury 
Savings'  Bank  v.  Charter  Oak  Ins.  Co.  31  Conn.  518. 
1863. 

§  26.  Conditions  in  a  policy  of  insurance,  that  no  suit 
shall  be  sustainable  thereon  unless  commenced  within  six 
months  after  a  loss  occiu's,  and  also  that  the  payment  of 
losses  shall  be  made  in  sixty  davs  from  the  date  of  the 
adjustment  of  preliminary  proora  of  loss  by  the  parties, 
must  be  so  construed  as  not  to  conflict  unnecessarily  with 
each  other.  And  where  the  parties,  in  good  faith  and 
without  any  objection  that  unnecessary  time  is  taken  for 
the  pui'pose,  are  occupied  so  long  in  adjusting  proofs  that 
sixty  days  from  the  date  of  adjustment  does  not  expire 
within  the  six  months,  the  policy  does  not  become  for- 
feited merely  because  the  suit  is  not  brought  within  six 
months  and  before  the  loss  is  payable.  An  action  brought 
promptly  upon  the  expiration  of  sixty  days  from  the  ad- 


393 


LIMITATION  CLAUSE. 


justment  of  loss,  "will  not  be  barred,  though  more  than 
six  months  have  elapsed  since  the  loss.  Mayor,  &c.  c^ 
New  York  v.  Hamilton  Fire  Ins.  Co.  16  Bosw.  N.  Y.  537. 
1863. 

§  27.  Where  the  insurer  on  being  applied  to  for  the 
pajinent  of  a  loss  under  a  policy  contaiumg  a  condition 
limiting  the  time  within  which  suit  might  be  brought,  de- 
clined paying  it,  on  the  ground  that  actions  had  been 
commenced  against  him  by  other  parties  which  were  still 
pending,  and  declared  he  would  do  nothing  in  reference 
to  such  loss  while  those  suits  were  pending ;  Held,  that 
this  did  not  amount  to  a  waiver  of  such  condition,  nor 
was  the  insurer  thereby  estopped  from  insisting  on  such 
condition  as  a  defense.  Ripley  v.  ^tna  Ins.  Co.  30  N.  Y. 
136.     1864. 

§  28.  A  condition  limiting  the  period  io  six  months 
after  the  happening  of  a  loss,  within  which  suit  may  be 
brought  upon  the  policy,  is  valid ;  and  will  bar  an  action 
not  commenced  within  that  time.  Roach  v.  New  York  & 
Erie  Ins.  Co.  30  N.  Y.  546.     1864. 

§  29.  Likewise  a  stipulation  that  an  action  shall  be 
commenced  within  one  year.  Ripley  v.  ^tna»Ins.  Co.  30 
N.  Y.  136.     1864. 

§  30.  A  condition  in  a  policy  limiting  the  time  with- 
in which  a  suit  may  be  brought  for  the  recovery  of  any 
claim  upon  it,  to  one  year  from  the  happening  of  a  loss, 
is  valid  and  binding.  Ripley  v.  .^tna  Ins.  Co.  30  N.  Y. 
136.     1864. 

§  31.  By  one  of  the  conditions  attached  to  a  fire 
policy,  it  was  provided  that  no  suit  should  be  brought 
upon  it  unless  within  twelve  months  next  after  the  loss ; 
and  in  case  any  suit  should  be  commenced  after  the  expi- 
ration of  twelve  months,  the  lapse  of  time  should  be 
deemed  and  taken  as  conclusive  evidence  against  the  va- 
lidity of  the  claim ;  Hefd,  that  if  such  a  condition  was 
valid  at  all,  it  was  valid  as  a  contract  only,  and  that 
the  limitation  fixed  by  it  must,  upon  the  principle  govern- 
ing contracts,  be  more  flexible  in  its  nature  than  one 
fi^ed  by  statute,  and  liable  to  be  defeated  or  extended  by 


LIMITATION  CLAUSE. 


393 


any  act  of  the  insurer  which  prevents  action  heina 
brought  within  the  prescribed  penod.  Peoria  Marine  & 
Fire  Ins.  Co.  v.  Hall,  12  Mich.  202.     1864. 

§  32.  It  is  competent  for  the  parties  to  a  policy  of 
insurance  to  provide  therein  that  no  action  shall  be  main- 
tained thereon  for  any  loss  after  the  lapse  of  a  certain 
time  after  such  .loss ;  but  such  condition  will  not  be  en- 
forced wh  an  so  necessarily  inconsistent  with  the  nature  of 
the  interest  insured  as  to  render  a  recovery  unattainable 
by  the  exercise  of  due  diligerce.  Longhurst  v.  Star  Ins. 
Co.  19  Iowa,  364.     1865. 

§  33.  All  the  company's  policies  provide  that  no  suit 
of  any  kind,  for  any  claim,  shall  be  sustained  unless 
commenced  within  six  months.  Held,  not  to  apply  where 
on  refusal  to  complete  the  policy,  a  bill  is  filed  to  compel 
either  execution  of  a  policy  or  payment  of  loss.  Penley 
V.  Beacon  Ins.  Co.  7  Grant  Ch.  130.     1859. 

§  34.  Policy  not  under  seal,  required  suit  in  case  of 
loss  to  be  brought  six  months  after  loss.  An  agreement 
was  made  between  assured,  and  D.,  an  agent  of  defendants, 
that  if  the  assured  would  wait  until  the  return  of  S. 
from  England,  no  advantage  of  the  limitation  would  be, 
taken.  The  insurance  had  been  effected  through  D.,  and 
the  premiums  paid  to  him,  and  the  policy  signed  by  him 
as  "  manager  for  the  dompany  in  Upper  Canada."  After 
the  six  months  had  expired,  a  tender  of  payment,  but  of  a 
lesser  sum  than  claimed,  had  been  macle.  Held,  D.  had 
power  to  bind  the  company  as  their  agent,  and  that  the 
agreement  operated  a  waiver  of  the  limitation.  Brady  v. 
Western  Ass.  Co.  17  U.  C,  C.  P.  597.     1867. 

§  35.  A  requirement  that  suit  shall  be  brought  at 
the  first  term  of  court,  held  after  sixty  days  from  refusal 
to  pay,  is  a  valid  condition,  and  the  plaintiffs,  not  having 
brought  the  suit  within  that  time,  are  precluded  from 
their  action.  Keim  v.  Home  Mut.  Fire  &;  Mar.  Ins.  Co. 
of  St.  Louis,  42  Mo.  38.     1867. 

§  36.  The  policy  required  suit  to  be  commenced 
"  within  six  months  after  any  loss  or  damage  shall  accrue," 
and  gave  the  company  sixty  days  to  pay  in,  after  ad- 


394 


LIMITATION  O^IUSE. 


jmtment  of  preliminary  proofs.  Held,  it  was  meant  that 
the  six  months  should  begin  after  the  right  of  action 
accrues,  and  the  assured  has  six  months  and  sixty  days 
after  date  of  preliminary  proofs  and  (^per  Hunt^  C.  «/!,) 
after  date  of  the  last  correction  of  proofs.  Mayor  of 
N.  Y.  V.  Hamilton  Fire  Ins.  Co.  39  N.  Y.  45.  1868. 
(Approvingly  mentioned,  28  Wis.  472,  484.) 

§  37.  Policy  provided  that  no  suit  to  recover  any 
claliii  on  the  policy  could  be  commenced  after  twelve 
months;  the  amount  due  for  a  loss  was  attached  by  a 
creditor  in  a  suit  against  the  assured  within  the  twelve 
months,  but  he  did  not  commence  this  suit  (a  seLfa.)  on 
on  the  judgment  until  after  the  twelve  months.  Held,  the 
process  of  garnishing  was  commencing  such  a  suit  as 
saved  the  limitation.  Harris  v.  Phoenix  Ins.  Co.  35  Conn. 
310.     1868. 

§  38.  A  clause  "  that  an  action  shall  not  be  sustained 
unless  stich  action  be  commenced  within  twelve  months 
after  loss,  the  lapse  of  which  period  shall  be  conclusive  evi- 
dence against  the  validity  of  the  claim,"  is  a  valid  clause,  and 
is  not  against  the  policy  of  the  State  statute  that  a  plaintiff 
"  suffering  a  nonsuit "  may  commence  a  new  action  within 
one*year.  It  refers  to  the  action  prosecuted  to  judgment, 
and  the  failure  of  a  previous  action  brought  within  the 
time  does  not  prevent  the  limitation  from  operating. 
Riddlesbarger  v.  Hartford  Ins.  Co.  7  Wallace,  386.    1868. 

§  39.  All  contracts  and  their  remedies  between  the 
North  and  South  were  suspended  during  the  war  until 
the  proclamation  of  June  13,  1865,  after  which  date  the 
limitation  of  twelve  months,  prescribed  in  a  policy  as  the 
time  in  which  suits  thereon  must  be  begun,  recommenced 
running.  Semmes  v.  City  Fire  Ins.  Co.  of  Hartford,  36 
Conn.  543.     1869. 

§  40.  A  policy  issued  by  a  Connecticut  company,  in 
1860,  to  a  resident  in  Mississippi,  on  a  building  in  the  lat- 
ter State,  contained  a  clause  requiring  suit  to  be  brought 
within  twelve  months  after  loss.  The  loss  occurred  Jan- 
uary, 1861,  and  this  suit  was  brought  in  October,  1866. 
Held,  the  limitation  was  suspended  during  war,  but  re- 


MOBTOAOOB  AND  MOBTOAQEE. 


895 


vived  again  upon  the  proclamation  of  June  13,  1865,  and 
the  suit,  not  havins  been  brought  Within  the  re(juired 
time,  exclusive  of  the  whole  period  of  disability,  is  not 
maintainable.  Semmes  v.  City  Fire  Ins.  Go.  of  Hartford, 
6  Blatch.  C.  0.  445.     1869. 

§  41.  A  clause  required  an  action  to  be  commenced 
within  twelve  months  after  the  loss  {quaere^  whether  this 
does  not  mean  after  a  riffht  of  action  accrued,  as  in  29 
N.  Y.  45),  at  all  events  when  the  assured  is  led  by  acts 
or  omissions  of  defendant's  officers  to  suspend  performance 
of  acts  required  on  his  part  after  a  loss — such  as  making 
proofs  for  a  certain  length  of  time — such  time  should  not 
Ibe  reckoned  as  part  of  the  twelve  months.  In  this  case, 
on  receipt  of  the  first  proofs,  the  general  agent  wrote, 
objected  to  them,  but  did  not  specify  any  defects,  and  said 
he  would  soon  call  on  the  assured*s  attorneys.  The  local 
agont  said  that  the  general  agent  was  expected  every  week, 
and  the  general  agent,  on  being  again  written  to  several 
months  after,  again  objected  to  the  sufficiency  of  the  proofs, 
but  said  it  was  no  part  of  his  duty  to  point  out  the  de- 
fects {sembhy  that  it  was  his  duty),  fcillips  v.  Putnam 
Fire  Ins.  Co.  28  Wis.  472.     1871. 

Sco  Assessments,  §  S.  By-Laws  and  Conditions,  10.  Examination  unden 
Oath,  3.  Notice  of  Loss,  26.  Pleading  and  Practice,  85.  Premium  Notes 
in  Advance,  11.    Venue,  4,  8. 


1 


MORTGAGOR  AND  MORTGAGEE. 

§  1.  The  expenses  of  insurance  are  not,  like  taxes,  a 
charge  on  the  mortgaged  premises,  without  a  special  stip- 
ulation to  that  eflFect ;  and  cannot  be  added  to  the  debt 
due  in  a  bill  of  foreclosure.  Fame  v.  Winans,  1  Ho'pkins 
Ch.  N.  Y.  283.     1824. 

§  2.  A  mortgagee  in  possession,  for  breach  of  con- 
dition, cannot  insure  the  premises,  and  charge  the  pre- 
miums as  a  debt  against  the  property,  in  absence  of  any 
agreement  to  that  effect.  Sanders  v.  "Winship,  5  Pick. 
Mass.  260.     1827. 


396 


MORTGAGOR  AND  MORTGAGEE. 


§  3.  If  mortgagor  requests  the  mortgagee  to  insure 
the  premises,  and  the  latter  does  effect  insurance  thereon, 
and  pay  the  premiums  for  such  insurance,  the  mortgagor 
must  repay  such  premiums,  in  addition  to  the  original 
debt.    Mix  v.  Hotchkiss,  14  Conn.  32.     1840. 

§  4.  Policy  was  assigned  to  a  mortgagee,  and  by 
mortgagee  to  a  third  party,  in  both  cases  as  collateral 
security ;  Held^  that  all  premiums  collected  on  the  policy 
by  mortagee  must  be  returned,  to  the  mortgagor,  upon 
payment  of  the  mortgage  by  the  latter.  Felton  v.  Brooks, 
4  Cush.  Mass.  203.     1849. 

§  5.  In  the  absence  of  any  agreement  with  ^the 
mortgagor,  the  mortgagee  cannot  add  to  the  mortgage 
de^jt,  and  charge  upon  the  property  premiums  paid  bv 
him  for  insurance.  Dobson  v.  La  id,  8  Hare  (Eng.  Ch.) 
216.     1850. 

§  6.  Mortgage  contained  covenants  of  mortgagor  to 
insure  the  premises  in  names  of  mortgagor  and  mort- 
gagees, not  adding  thei.'  heirs,  executors,  «fec.  The  mort- 
gagees entered  into  possession  after  the  mortgagor's  death. 
Those  entitled  to  equity  of  redemption  not  having  kept 
up  insurance,  the  mortgagees  took  insurance  on  their  own 
names.  Held^  that  they  were  entitled  to  add  the  premiums 
to  their  mortgage  debt.  Dobson  v.  Laud,  4  De  Gex  & 
Smale,  575.     1851. 

• 

§  7.  Wliere  the  mortgagee  insured  the  mortgaged 
property,  and  charged  the  premiums  to  the  mortgagor  by 
virtue  of  a  contract  that  mortgagor  should  keep  the  prop- 
erty insured ;  Held.,  that  the  premiums  thus  paid  by  the 
mortgagee  should  be  added  to  the  original  debt,  on  a  bill 
in  equity  to  redeem,  although  mortgagee  had  effected  the 
insurance  in  his  "  own  name,"  '''  for  whom  it  may  concern," 
and  had  it  made  "payable  to  himself  in  case  of  loss." 
Fowler  v.  Palmer,  5  Gray,  Mass.  549.     1856. 

§  8.  A  mortgage  saying  nothing  as  to  the  application 
of  insurance  money  on  a  policy  assigned  to  the  mortgagee, 
the  mortgagee  need  not  apply  it  or  the  interest  to  reduce 
the  mortgage  debt  until  the  maturity  thereof.  Austin  v. 
Story,  10  Grant's  Ch.  306.     1863. 


MUTUAL  COMPAIOES   AlO)    MEMBEE8  OF. 


897 


See  Alienation,  §  85,  45.  Assignment,  41.  Concealment,  17.  Damages, 
7,  20.  Damages  beyond  Actual  Loss,  4,  5,  6.  Encumbrance,  2,  25.  Evi- 
dence, 67.  Insurable  Interest,  26,  49.  Interest  in  Policy,  9, 12,  13,  16,  33, 
25,  38,  39.  Other  Insurance,  5,  83,  54, 104.  Payment  of  Loss,  12.  Rc>pon- 
sibility  of  Assignee  for  Acts  of  Assignor,  18.  Subrogation,  7, 12.  Who  May 
Sue,  7. 


MUTUAL  COMPANIES  AND  MEMBERS  OF. 


§  1.    PlaintifF  loaned  $6,000  to  the  Croton  Insurance 
Company,  receiving  from  the  president,  as  collateral  secu- 
rity, a  number  of  premium  notes.    At  maturity  of  the  loan, 
June  24,  1846,  the  company's  note  was  renewed  for  $5,500, 
And  as  a  condition  of  the  renewal,  an  arrangement  was 
made  by  the  president  with  the  plaintiff,  that  the  latter 
should  be  furnished  with  additional  security,  in  accord- 
ance with  which  arrangement  the  note  in  suit  was  trans- 
ferred to  the  plaintiff  on  the  16th  day  of  July,  1846.    The 
company  became  insolvent  on  the  14th  day  of  May,  1846, 
and  the  fact  was  known  to  the  plaintiff  before  July.     Held^ 
that  the  Kevised  Statutes  in  New  York,  making  invalid 
any  assignment  of  a  moneyed  corporation  which  gave  a 
preference  to  particular  creditors,  was  applicable  to  mutual 
insurance  companies,  and  that  the  transfer  of  the  note  in 
suit,  was  therefore  ii\valid,  unless  in  some  way  it  be  ex- 
cepted from  the  force  of  the  statute ;  that  the  general  un- 
derstanding with  the  president,  not  carried  into  effect, 
before  the  actual  insolvency  of  the  company,  could  not 
overrule  the  stu^ate ;  nor  could  the  arrangement  with  the 
receiver,  whereby  the  receiver  relinquished  all  claim  to 
the  note,  such  arrangement  taking  place  subsequent  to  the 
commencement  of  this  suit,  enable  the  plaintiff  to  maintain 
the  action.     Furniss  v.  Sherwood,  3  Sandf  N.  Y.  521. 
1850. 

§  2.  A  mutual  insurance  company  in  New  York, 
whose  charter  is  the  same  as  that  of  the  Jefferson  County 
Mutual  Insurance  Company,  may  make  in  New  York 
valid  contracts  of  insurance  on  '*  personal  property,"  ^vher- 
ever  such  personal  property  may  be  owned  or  situated. 


398 


MUTUAL  COMPANIES   AKD   MEMBERS  OF. 


Western  v.  Genesee  Mut.  Ins.  Co   2  Kern.  N.  Y.  258. 
1855. 

§  3.  Under  charter  of  a  mutual  insurance  company, 
similar  to  that  of  the  JeflPerson  County  Mutual  Insurance 
Company  of  New  York ;  Jleldy  that  membership  did  not 
cease  with  the  destruction  of  the  property  insured,  but  con- 
tinued for  the  whole  term  for  which  their  policies  were 
issued.     Bangs  v.  Scidmore,  24  Barb.  N.  Y.  29.     1857. 

§  4.  A  mutual  insurance  company,  organized  under 
the  general  act  of  1849,  in  New  York,  is  not  authorized  to 
do  business  on  the  mutual  and  stock  plans,  combined,  re- 
ceiving of  some,  premium  notes,  and  of  others,  cash  in  lieu 
of  auch  premium  notes.  Hart  v.  Achilles,  28  Barb.  N*  Y. 
576.     1858. 

§  5.  There  is  a  wide  distinction  between  the  liabilities 
of  those  who  give  notes  to  form  the  capital  stock  of  a  mut- 
ual insurance  company,  and  of  those  who  give  notes  for 
premiums  after  the  stock  is  made  up  and  the  company 
brought  into  existence.  While  the  former  class  are  liable 
on  their  notes,  irrespective  of  losses,  the  latter  are  liable 
only  for  ihep7'0  rata  share  of  such  losses,  in  common  with 
all  other  available  premium  notes  held  by  the  company. 
Dana  v.  Munro,  38  Barb.  N.  Y.  528.     1860. 

§  6.  Notwithstanding  a  clause  in  the  charter  of  a 
mutual  insurance  company,  declaring  that  all  persons  who 
shall  insure  with  the  company,  and  their  heirs,  <fec.,  "  so 
long  as  they  shall  be  insured  in  said  company,  shall  be 
and  continue  members  thereof,  and  no  longer,"  persons 
insured  are  still  members  of  the  company,  and  lial)le  to 
contribute  for  the  losses  sustained,  although  they  may 
have  dohe  some  act  which  by  the  terms  of  the  policy 
works  a  forfeiture.  Hyatt  v.  Wait,  37  Barb.  N.  Y.  29. 
1862. 

§  7.  The  surrender  of  a  policy  in  a  mutual  company 
by  the  insured,  and  its  cancellation  by  the  insurance  com- 
pany, dissolves  the  relation  of  the  insured  as  a  member 
thereof,  and  the  company  has  no  further  claims  upon  him, 
except  for  unpaid  assessments  previously  made.  Camp- 
bell V.  Adams,  38  Barb,  N.  Y.  132.     1862. 


HUTTTAL  COMPANIES   AKD   MEMBEBS   OF. 


399 


§  8.  "Where  A.  has  duly  become  a  member  of  a  mut- 
ual fire  insurance  company,  and  subsequently  the  com- 
pany pass  a  by-law  which  is  in  conflict  with  their  charter, 
this  by-law  cannot,  unless  assented  to  by  A.,  change  and 
impair  his  rights  under  his  previous  contract.  Great  Falls 
Mut.  Fire  Ins.  Co.  v.  Harvey,  45  N.  H.  292.     1864. 

§  9.  A  mutual  fire  insurance  company  organized  un- 
der the  laws  of  Indiana,  has  power  to  provide  in  its  arti- 
cles of  association  or  by  its  by-laws,  that,  upon  a  failure 
after  notice  to  pay  an  assessment  upon  a  premium  note, 
the  entire  note  shall  become  due  and  collectable.  German 
Mut.  Fire  Ins.  Co.  v.  Franck,  22  Ind.  364.     1864. 

-<§  10.  A  by-law  of  an  insurance  company,  which  pro- 
vides that  a  special  meeting  shall  be  called  by  the  presi- 
dent, or  in  his  absence  by  the  secretary,  on  application 
made  to  them  in  writing  by  ten  members,  does  not  pre- 
clude the  directors  from  calling  special  meetings  without 
such  application.  Citizens'  Mut.  Fire  Ins  Co.  v.  Sortwell, 
8  Allen,  Mass.  217.     1864. 

§  11.  A  mutual  insurance  company  in  Massachusetts 
may  resume  business,  after  passing  a  vote  to  take  no  more 
risks.  Traders'  Mut.  Fire  Ins.  Co.  v.  Stone,  9  Allen,  Mass. 
483.     1864. 

§  12.  An  action  to  compel  a  mutual  insurance  com- 
pany to  readjust  its  dividends,  and  to  correct  an  error  it 
has  committed  in  issuing  certificates  of  earnings,  may  be 
brouffht  by  a  portion  of  the  stockholders  on  their  own 
behalf  and  on  behalf  of  other  stockholders  who  are  i..ter- 
ested  with  them  in  the  same  questions,  and  who  may  elect 
to  come  in  and  contribute  to  the  expenses  of  the  suit,  and 
be  bound  by  the  judgment.  Luling  v.  Atlantic  Mut.  Ins. 
Co.  45  Barb.  N.  Y.  510.     1865. 

§  13.  Where  by  an  act  of  the  legislature  of  Massa- 
chusetts, three  independent  mutual  insurance  companies 
were  incorporated  in  one  under  a  new  name,  with  a  pro- 
vision that  the  act  "  shall  not  affect  the  legal  rights  of  any 
person,"  nor  take  effect  until  it  shall  be  accepted  by  the 
members  of  said  corporations  respectively,  at  meetings 
called  for  that  purpose ;  Heldy  that  a  member  of  one  of  the 


400 


MUTUAL  OOMPAIOES  AXD  MEMBERS   OF. 


old  corporations  not  expressly  assenting  to  such  act  was 
not,  by  the  mere  force  thereof,  constituted  a  member  of 
the  new  organization.  Such  person  must  seek  any  reme- 
dies to  which  he  may  be  entitled  on  a  policy,  against  the 
original  corporation  of  which  he  was  a  member.  Gardner 
amilton  Mut.  Ins.  Co.  33  N.  Y.  421.     1865. 


V. 


§  14.  A  member  of  a  mutual  insurance  company  who 
has  contracted  with  it  as  a  valid  corporation,  is  not  in  a 
position  to  object  to  the  regularity  of  the  incorporation  or 
formation  of  the  company.  Sands  v.  HiU,  42  Barb.  N.  Y. 
651.     1865. 

§  15.  A  provision  in  the  charter  of  a  mutual  insur- 
ance company  that  said  company  "  may  receive  notes  for 
premiums  in  advance,  from  persons  to  receive  its  policies, 
and  may  negotiate  the  same  for  the  purpose  of  paying 
claims  or  otherwise,  in  the  course  of  business,"  authorizes 
such  company  to  transfer  its  notes  thus  received  as  collat- 
eral security  for  the  payment  of  its  debts.  Brookman  v. 
Metcalf,  32  N.  Y.  591.     1865. 

§  16.  Where  a  policy  issued  by  a  mutual  insurance 
company  referred  to  the  articles  of  incorporation  and  by- 
laws which  were  attached  thereto,  and  an  assured  became 
a  member  of  the  company;  Ileld^  that  the  assured  was 
charged  with  knowledge  of  the  provisions  of  the  charter 
and  by-laws.  Simeral  v.  Dubuque  Mut.  Fire  Ins.  Co.  18 
Iowa,  319.     1865. 

§  17.    The  members  of  a  mutual  insurance  company 
are  charged  with  knowledge  of  the  rules  and  laws  of  the 
*    corporation.    Coles  v.  Iowa  State  Mut.  Ins.  Co.  18  Iowa, 
426.     1865. 

§  18.  It  is  competent  for  the  board  of  directors  of  a 
mutual  insurance  company,  acting  under  provisions  of  the 
articles  of  incorporation  and  by-laws,  authorizing  them, 
when  the  payment  of  an  assessment  became  delinquent,  to 
recover  the  whole  amount  of  the  premium  notes,  and  "  at 
their  option  annul  the  policy  of  insurance,"  to  pass  a  reso- 
lution declaring  what  holders  of  policies  were  delinquent 
on  a  certain  assessment,  and  that  those  who  should  re- 
main deline^uent  beyond  a  date  mentioned,  should  be  ex- 


MUTUAL  COMPANIES   AND    MEMBERS   OF. 


401 


eluded  and  debarred,  and  lose  all  benefits  of  their  insurance 
for  and  during  the  term  of  such  default  and  non-payment, 
and  still  hold  them  liable  for  the  payment  of  all  subse- 
quent assessments  which  should  be  made  upon  their  sev- 
eral policies  during  the  continuance  of  the  same.  Coles 
V.  Iowa  State  Mut.  Ins.  Co.  18  Iowa,  425.     1865. 

§  19.     A  person  insured  in  a  mutual  insurance  com- 
pany is  a  member  of  it,  and  is  bound  to  become  informed   r^ 
of  its  rules  and  regulations.    Mitchell  v.  Lycoming  Mut. 
Ins.  Co.  51  Penn.  St.  402.     1865. 

§  20.  The  fact  that  a  company  is  a  mutual  company 
will  not  render  an  assured  so  far  a  member  as  to  be  bound 
by  the  acts  of  an  agent  of  the  company  pending  his  appli- 
cation for  insurance.  Columbia  Ins.  Co.  v.  Cooper,  50 
Penn.  St.  331.     1865. 

§  21.  A  negotiable  promissory  note,  payable  abso- 
lutely upon  its  face,  and  given  to  a  mutual  insurance -com- 
pany, may  be  n^^;;;  >tiated  by  such  company  in  the  usual 
and  ordinary  course  of  business.  Farmers'  Bank  v.  Max- 
well, 32N.  Y.  579.     1865. 

§  22.  Under  the  statute  of  Massachusetts,  the  state- 
ment of  the  condition  of  a  mutual  insurance  company  at 
the  time  of  laying  an  assessment  may  be  recorded  in  the 
same  book  in  which  the  annual  statements  of  the  company 
are  recorded ;  and  if  signed  by  several  of  the  directors,  and 
it  does  not  appear  that  any  others  voted  for  it,  the  pre- 
sumption is  that  all  who  voted  for  it  signed  it.  Citizen's 
Mut.  Fire  Ins.  Co.  v.  Sortwell,  10  Allen,  Mass.  110.   1865. 

§  23.  The  liabilities  of  the  members  of  a  mutual  in- 
surance society  depend  usually  on  the  rules  of  the  society, 
and  not  on  the  policy ;  consequently  where  in  a  policy  the 
premium  and  rate  per  cent,  were  left  blank,  and  the  words 
"  twenty  pounds  per  cent."  were  written  in  in  a  separate 
line ;  Jleld,  that  such  words  did  not  limit  the  amount  for 
which  each  member  was  liable  to  20  per  cent,  on  the  sum 
he  had  insured.  Gray  v.  Gibson,  Law  Rep.  2  C.  P.  120. 
1866. 

f24.    Members  of  a  mutual  insurance  company,  when 
for  assessments,  cannot  raise  the  question  of  proper 
corporate  organization,  the  company  and  oflScers  being  such    • 

86 


402 


MUTUAL  COMPAIOES  AND  MEMBEBS   OF. 


de  facto  under  color  of  authority,  and  with  the  acquies- 
cence of  the  members.  Providence  F.  <fe  M.  Ins.  Co.  v. 
Murphy,  8  R  I.  131.     1864. 

§  25.  In  the  absence  of  proof  to  the  contrary,  a  mutual 
insurance  company  is  to  be  presumed  to  have  done  every- 
thing required  to  enable  them  to  sue  as  a  corporation ;  the 
absence  of  affirmative  showing  by  the  minute-book  is  no 
evidence  of  non-compliance  with  the  charter  requirement 
of  $1,000,000  subscription.  QucB7'e,  whether  a  member  of 
the  company  can  deny  its  corporate  existence  to  avoid  his 
obligation  to  pay  assessments,  or  whether  such  existence 
can  be  collaterally  impeached.  National  Mut.  Fire  Ins.  Co. 
v.  Yeomans,  8  R.  I.  25.     1864. 

§  26.  The  insured  in  a  mutual  company  being  a 
member,  the  minutes  are  as  much  his  as  the  other  mem- 
bers', and  are  therefore  evidence  against  him.  Diehl  v. 
Adams  Co.  Mut.  Ins.  Co.  58  Pa.  St.  443.     1868. 

§  27.  Certain  statutes  making  the  directors  of  a  mut- 
ual company  personally  liable  in  case  of  neglect  to  assess 
the  stock  notes  for  the  amount  of  the  loss ;  Held,  as  the 
policy-holders  at  the  time  of  the  loss,  not  at  the  time  of 
the  judgment,  were  the  ones  bound  to  the  assured,  and 
that  class  having  been  closed  up,  the  directors  at  the  date 
of  judgment,  having  no  class  to  enforce  against,  were  not 
negligent,  and  hence  not  personally  liable.  Upton  v. 
Pratt,  103  Mass.  551.     18Y0. 

§  28.  While,  generally,  the  directors  have  no  power 
to  validate  by  consent,  changes  in  the  charter  by  the  leg- 
islature requiring  the  assent  of  the  corporation,  yet  when 
a  mutual  company  is  suing  a  stockholder  on  his  premium 
note,  given  prior  to  the  change,  no  burden  is  thrown  on 
the  company  to  show  acceptance  of  the  change  by  the  cor- 
poration; the  assent  will  be  inferred  from  any  acts  incon- 
sistent with  any  other  hypothesis.  The  adoption  of  the 
amendment  cannot  be  disputed  collaterally;  it  must  be 
by  quo  warranto  or  a  suit  by  himself  to  restrain.  Hope 
Mut.  Fire  Ins.  Co.  v.  Beekman,  47  Mo.  93.     1870. 

See  Lien.  Also  Aeent,  §  60.  Assessments,  8, 17,  42,  48,  51,  62,  66,  67, 
68.  Estoppel,  18.  Evidence,  97.  Foreign  Insurance  Cos.,  9,  14.  Illegality 
of  Contract,  7,  8.  Parol  Contract,  6.  Payment  of  Premium,  11, 13.  Premium 
Notes,  84,  86,  86,  46,  47.    Return  Premium,  2.    Succeeaive  Losses,  2. 


NEGLIGENCE. 

§  1.  A  loss  by  fire,  occasioned  by  the  mere  fault  and 
negligence  of  the  assured,  or  his  servants,  or  agents,  and 
without  fraud  or  design,  is  a  loss  within  the  policy.  Co- 
lumbian Ins.  Co.  V.  Lawrence,  10  Pet.  U.  S.  507.     1836. 

§  2.  Assured  may  be  guilty  of  such  gross  misconduct, 
not  amounting  to  a  fraudulent  intent  to  burn  the  building, 
as  to  deprive  him  of  his  right  to  recover  on  the  policy. 
Chandler  v.  Worcester  Mut.  Fire  Ins.  Co.  3  Cush.  Mass. 
328.     1849. 

§  3.  Negligence  of  the  insured's  servants  or  agents 
does  not,  in  the  absence  of  fraud,  prevent  recovery  on  the 
policy.  Williams  v.  New  England  Mut.  Fire  Ins.  Co.  31 
Maine,  219.  1850.  St.  Johns  v.  American  Ins.  Co.  1  Duer, 
N.  Y.  371.  1852.  Hynds  v.  Schenectady  County  Mut. 
Ins.  Co.  16  Barb.  N.  Y.  119.  1852.  Gates  v.  Madison 
County  Mut.  Ins.  Co.  1  Selden,  N.  Y.  469.  1861.  Catlin 
v.  Sprmgfield  Ins.  Co.  1  Sumner,  C.  C.  U.  S.  434.  1833. 
Matthews  v.  Howard  Ins.  Co.  13  Barb.  N.  Y.  234.     1852. 

§  4.  Carelessness  or  negligence,  as  such,  cannot  be 
held  to  be  a  defense  to  an  action  on  a  policy  of  insurance. 
In  the  absence  of  fraud,  it  is  the  proximate  cause  of  the 
loss  that  is  to  be  considered.  If,  however,  the  acts  done 
or  neglected  to  be  done  are  of  a  character  which  tend  to 
show  design  or  fraud,  they  would  be  admissible.  Huckins 
v.  People's  Mut.  Ins.  Co.  11  Fost.  N.  H.  238.     1855. 

§  5.  The  failure  of  insured  to  repair  a  defect  in  the 
property,  arising  after  the  contract  was  made,  unless  he 
be  guilty  of  gross  neglect,  does  not  work  a  forfeiture  of  the 
assured's  right  to  recover  on  the  policy.  Whitehurst  v. 
FayetteviUe  Mut.  Ins.  Co.  6  Jones  Law,  N  C.  352.  '  1859. 

§  6.  Where  a  steamboat  was  insured,  among  other 
risks,  against  fire,  and  aftei'wards  was  put  upon  floating 
dock  for  repairs,  and  while  on  the  dock  was  burned, 
through  carelessness  and  negligence  of  the  workmen  hav- 
ing the  boat  in  charge,  the  insurers  were  held  liable.  St. 
Louis  Ins.  Co.  v.  Glasgow,  8  Mo.  713.    1844. 


/ 


404 


NEGLIGENCE. 


§  7.  lu  an  action  on  a  policy  of  insurance  against 
fire,  evidence  is  inadmissible  to  prove  that  the  loss  oc- 
curred tlirou^li  negligence  of  an  agent  of  the  assured, 
The  evidence  is  irrelevant.  Henderson  v.  Western  Marine 
&  Fire  Ins.  Co.  10  Rob.  La  164.     1845. 

§  8.  Mere  negligence  on  the  part  of  a  person  in- 
sured, although  the  direct  cause  of  a  loss  by  fire,  is  not  a 
defense  to  an  action  upon  a  policy  against  fire,  if  he  acted 
in  good  faith,  and  his  negligence  did  not  amount  to  reck- 
lessness and  wilfid  misconduct.  Johnson  v.  Berkshire 
Mut.  Fire  Ins.  Co.  4  Allen,  Mass.  388.     1862. 

§  9.  Tlie  usual  clause  in  a  policy  that  upon  the  hap- 
pening of  a  fire  the  insured  shall  use  all  reasonable  means 
for  "the  protection"  of  the  property  does  not  require 
them  to  use  means  to  restore  it  to  its  condition  before  the 
fire,  but  only  to  take  the  necessary  steps  to  prevent  its 
final  destruction  or  further  deterioration,  and  to  put  it  in 
a  condition  to  be  examined.  Thus,  where  a  large  part  of 
the  goods  insured  were  shirts,  bosoms,  and  collars,  most  of 
which  were  injui'ed  only  by  water  or  by  handling ;  Ileldf 
that  the  insured  were  not  bound  to  have  them  relaun- 
dried.  Hoffman  v.  .iEtna  Fire  Ins.  Co.  1  Robert.  N.  Y. 
501.  1863.  s.  c.  19  Abb.  Pr.  325.  Afllnned,  32  N.  Y. 
405. 

§  10.  Where  a  risk  has  not  been  increased  within 
the  conditions  of  a  policy,  it  is  not  a  defense  to  an  action 
upon  it,  that  the  plaintiff  might  liave  been  more  careful  in 
the  management  of  a  business  which  he  was  pennitted,  by 
the  tenns  of  the  policy,  to  carry  on.  Brown  v.  Kings 
County  Fire  Ins.  Co.  31  How.  N.  Y.  508.     1865. 

§  11.  Loss  by  fire  on  land,  caused  by  the  fault  or 
negligence  of  the  assured  or  his  servants,  not  sufiicient  to 
be  constructively  fraudulent,  is  protected  by  the  policy. 

Where  the  buildings  are  burnt  by  the  wife  of  the  as- 
sured, admitted  to  be  insane,  and  who  was  then  in  the 
custody  of  her  husband,  no  design  being  shown  nor  such 
negligence  on  his  part  as  will  be  deemed  equivalent  to  a 
fraudulent  purpose,  she  never  having  before  set  fire  to 
anything  when  alone,  and  the  husband  not  being  shown 


NEW  TRIAL. 


405 


to  have  omitted  ordinary  care,  the  defendants  are  liable. 
Gove  V.  Farmers'  Mut.  F.  Ins.  Co.  48  N.  H.  41.     1868. 

§  12.  Negligence  in  the  insured  or  his  servants,  is  one 
of  the  things  insured  against.  A  court's  charge  that 
"  gross  negligence  "  excuses  payment  of  the  loss,  without 
explaining  the  import  of  "  cross,"  and  having  some  testi- 
mony on  which  to  found  sucli  charge,  is  erroneous.  Muel- 
ler V.  Putnam  F.  Ins.  Co.  45  Mo.  84.     1869. 

§  13.  A  fire  policy  is  a  protection  against  the  as- 
sured's  own  negligence  or  that  of  his  employees,  in  the 
absence  of  fraud  or  design.  Maryland  F  Ins.  Co.  v. 
Whiteford,  31  Md.  219.  1869.  Per  Strong,  J.,  in  Cum- 
berland Valley  M.  P.  Co.  v.  Douglas,  58  Pa.  St.  419. 
1868. 

See  Ri8k,  §  32. 


NEW    TRIAL. 

§  1.  Where  verdict  had  been  rendered  against  an  in- 
surance company,  the  court  refused  to  grant  a  rule  nisi  for 
a  new  trial  on  the  ground  that,  subsequently  to  a  verdict 
for  the  plaintiff,  the  grand  jury  had  found  a  bill  against 
him  and  others  for  a  conspiracy  to  defraud  the  insurance 
company  in  this  very  matter.  But,  upon  affidavits  dis- 
closing the  conspiracy  itself,  and  showing  that  the  defend- 
ant did  not  attain  a  knowledge  of  it  till  after  the  trial,  so 
that  the  plaintiff's  case  was  in  effect  a  surprise  on  them, 
the  court  granted  a  rule  nisi  for  a  new  trial  on  payment 
of  costs.  Thurtell  v.  Beaumont,  1  Bing.  339.  (E.  C.  L. 
538.)     1823. 

§  2.  The  court  will  not  grant  a  new  trial,  after  two 
concurring  verdicts,  in  a  case  where  there  were  many  wit- 
nesses, and  a  great  deal  of  testimony  on  both  sides  upon  a 
mere  question  of  fact  (supposing  there  was  no  misdirec- 
tion), although  the  verdict  was  against  the  weight  of  evi- 
dence. Fowler  v.  ^tna  Fire  Ins.  Co.  7  Wend.  N.  Y.  270. 
1831. 


406 


NOTICE  OP  L08S. 


§  3.  In  case  of  fraud,  where  newly  discovered  evidence 
is  cumulative  upon  the  fraud,  but  of  new  facts,  a  new 
trial  will  be  granted.  Harris  v.  Protection  tns.  Co. 
Wright,  Ohio,  548.     1834. 

§  4.  Where  the  preliminary  proofs  are  loose  and  in- 
definite, interest  ought  not  to  be  allowed,  but  if  interest 
has  been  allowed,  the  verdict  will  not  for  that  cause  be 
set  aside,  but  the  plaintiff  will  be  allowed  to  remit  inter- 
est and  let  the  verdict  stand.  McLaughlin  v.  Washington 
County  Mut.  Ins.  Co.  23  Wend.  N.  Y.  525.     1G40. 

§  5.  If  at  time  of  making  application  for  an  in- 
surance, anything  was  said  or  done  to  raise  a  doubt  as  to 
the  authority  of  the  agent  to  make  such  insurance,  it  will 
be  too  late  to  raise  the  question  on  a  bill  of  exceptions  for 
a  new  trial.  Lightbody  v.  North  American  Ins.  Co.  23 
Wend.  N.  Y.  18.     1840. 

§  6.  If  in  an  action  on  a  policy  of  insurance,  the 
plaintiff  procure  a  material  witness  to  be  hired  to  keep 
out  of  the  way,  so  that  he  could  not  be  summoned  by 
the  defendants,  the  verdict  will  be  set  aside.  Crafts  v. 
Union  Mut.  Fire  Ins.  Co.  36  N.  H.  44.     1858. 

§  7.  Though  a  waiver  must  be  intentional  and  clearly 
proven,  the  sufficiency  of  the  evidence  relating  thereto  is 
for  the  jury,  whose  error  in  judgment  thereon  can  be  cor- 
rected only  by  motion  for  new  trial.  Lycoming  County 
Mut.  Ins.  Co.  V.  Schollenberger,  44  Penn.  St.  259.     1803. 

8ee  Concealment,  §  2,  17.    Contributioti,  4.    Increase  of  Risk,  15.    Parol 
Evidence,  35.    Questions  for  Court  and  Jury,  1.    Use  and  Occupation,  70. 


NOTICE    OF   LOSS. 

§  1.    Where  "  notice  of  loss "  was  given  to  the  com- 
pany by  the  assignee  of  the  policy,  which  had  been  ae 
signed  with  consent  of  the  insurer ;    Ileld^  that  it  was  a 
compliance  with  the  condition,  "  That  all  persons  insured 
by  the  company,  and  sustaining  loss  or  damage  by  fire, 


NOTICB  OP  LOSS. 


407 


are  forthwith  to  give  notice  thereof  to  the  agent."    Cor- 
nell V.  LeRoy,  9  Wend.  N.  Y.  163.     1832. 

§  2.  Where  it  appeared  in  evidence  that  the  presi- 
dent and  one  of  the  directors  of  the  company  went  to 
the  place  where  the  fire  was,  for  the  purpose  of  exam- 
ining into  the  matter;  Held^  that  the  assured  might 
well  be  excused  from  giving  any  further  notice  to  the 
company,  as  he  could  not  make  it  more  certain.  If  the 
knowledge  be  fully  communicated,  courts  are  not  very 

Particular  aa  to  the  form  in  which  it  is  done.    Roumage  v. 
Eechanics'  Fire  Ins.  Co.  1  Green,  N.  J.  110.     1832. 

§  3.  The  declaration  of  assured,  in  an  action  on  a 
policy  of  insurance,  alleged  that  the  buildings  insured  had 
been  consumed  on  the  23d  of  February,  1837,  and  that  he 
gave  notice  thereof  to  the  defendants  on  the  2d  of  April 
ensuing.  Held,  that  this  was  no  compliance  with  the  con- 
dition of  the  policy  requirin,^  notice  of  a  loss  to  be  given 
"forthwith;"  that  "  forthwith "  meant  immediately,  with- 
out delay,  directly ;  and  that  a  notice  given  thirty-eight 
days  after  the  fire,  was  neither  a  literal  nor  a  substantial 
compliance  with  the  condition.  Inman  v.  Western  Fire 
Ins.  Co.  12  Wend.  N.  Y.  452.     1834. 

§  4.     Policy  provided  "that  persons  sustaining  loss'or 
damage  by  fire,  shall  forthwith  give  notice  thereof  in 
writing  to  the  company,"  «fec. ;  Heta,  that  a  neglect  to  give  /  / 
notice  of  a  loss,  until  more  than  four  mouths  afterwards,  '  / 
was  fatal  to  the  claim.     McEvers  v.  Lawrence,  1  Hoff.  Ch. 
N.Y.  171.    1839. 

§  5.  The  condition  requiring  "  notice  of  loss  forth- 
with," is, to  be  construed  as  meaning  with  due  diligence 
and  without  unnecessary  delay,  and  whether  such  due 
diligence  has  been  used  is  a  question  to  be  determined  by 
the  jury.  Edwards  v.  Baltimore  Ins.  Co.  3  Gill,  Md.  176. 
1845. 

§  6.  Where  "  notice  of  loss  "  is  required,  and,  upon 
demand  for  payment  on  policy,  the  underwriters  reply 
that  the  proof  is  unsatisfactory,  there  has  been  a  material 
concealment,  and  all  rights  are  forfeited  under  a  certain 
article  of  the  policy,  and  add  that  they  reserve  all  objec- 


\  I 


1 


408 


NOTICE  OF  LOSS. 


tions  to  a  recovery  in  any  form,  and  without  intending  to 
waive  any  of  tlieir  rights  under  the  policy ;  this  answer 
cannot  be  construed  as  a  waiver  of  the  objection  that  no- 
tice of  loss  was  uot  given  forthwith.  Edwards  v.  Baltimore 
Ins.  Co.  3  Gill,  Md.  176.     1845. 

§  1.  Where  policy  requires  notice  forthwith  in  case 
of  loss,  it  is  only  necessary  that  the  notice  should  be  given 
with  due  diligence  under  all  the  circumstances  of  the  case. 
The  receiving  a  notice,  and  failing  to  make  objection  to  its 
being  in  time,  is  no  waiver  of  the  delay.  St.  Louis  Ins. 
Co.  V.  Kyle,  11  Mo.  278.     1848. 

§  8.  Where  policy  required  "  notice  of  loss  in  writing 
within  thirty  days  after  the  fire,"  and  such  notice  was  given 
within  that  time,  but  was  accompanied  by  a  request  from 
assured  to  the  underwriters,  to  take  part  in  measures  in- 
stituted for  detecting  the  cause  of  the  fire ;  Held,  that  the 
addition  of  such  request  did  not  invalidate  the  notice. 
Rix  V.  Mutual  Ins.  Co.  20  N.  H.  198.     1849. 

§  9.     Where  notice  was  merely  of  a  loss,  and  defective 

'^i  z-.^'  "'  ij^  other  particulars,  and  the  president  of  the  company,  after 

*"    /»>    visiting  the  ruins,  made  no  objection  to  the  notice,  nor 

'^^     \/     called  for  any  further  particulars,  but  refused  to  pay  the 

loss  altogether;  Held,  that  the  company  had  thereby  waived 

any  further  or  different  notice.  Clark  v.  New  England  Mut. 

Ins.  Co.  6  Cush.  Mass.  342.     1850. 

"  §  10.    The  policy  required  "  notice  of  loss  forthwith." 

Two  or  three  days  after  the  fire,  assured  went  to  the 
agent's  office  and  told  him  the  property  was  burnt,  where- 
upon the  agent  went  to  the  ruins  and  examined  the  prem- 
ises. Tvyenty  days  after  the  fi) «  a  written  notice  was  given 
to  the  agent,  -.'ho  told  the  assnrt  d  "  that  the  press  of  busi- 
ness was  so  great,  that  his  matter  could  not  be  attended 
to  just  then.  Subsequently  n  traveling  agent  of  the  com- 
pany investigated  the  matter,  examined  books  and  papers 
of  assured,  and  refused  to  pay  the  claim.  Held,  that  the 
notice  was  sufficient  under  the  circumstances.  Philips  v. 
Protection  Ins.  Co.  14  Mo.  220.     1851. 

^  §  11«     Where  the  act  of  incorporation  and  by-laws 

were  not  referred  to  in  the  policy  or  made  a  part  thereof, 


NOTICE  OF  LOSS. 


409 


and  one  of  such  by-laws  required  a  "  notice  of  loss  forth- 
with;" Held,  that  the  assured,  under  this  policy,  upon 
giving  the  company  reasonable  notice  of  a  loss,  was  en- 
titled to  recover.  Kingsley  v.  New  England  Mut.  Fire 
Ins.  Co.  8  Cush.  Mass.  .S93.     1851. 

§  12.  Where  fire  occurred  on  the  10th  of  August, 
and  notice  of  the  loss,  dated  on  the  11th,  was  received  by 
the  secretary  on  the  15th  of  the  same  month  by  mail ; 
Held,  that  this  was  a  compliance  with  the  condition  of 
the  policy  requiring  immediate  notice  of  loss.  Held 
further,  that  if, .  upon  receipt  of  such  notice,  the  secretary 
informed  assured  that  prompt  steps  would  be  taken  to 
adjust  and  examine  the  matter,  and  the  company  subse- 
quently refused  to  pay  the  loss  on  other  grouuds,  this 
was  a  waiver  of  the  objection  on  the  part  of  the  company. 
Schenck  v.  Mercer  County  Mut.  Ins.  Co.  4  Zabr.  N.  J. 
447.     1854. 

§  13.  Where  assured,  in  their  declaration,  in  an  ac- 
tion on  policy  of  insurance,  alleged  the  giving  of  notice 
of  loss,  and  the  defendants  did  not  deny  it  in  their 
answer;  Held,  that  they  could  not  avail  themselves  of 
the  objection  that  no  notice  was  given,  upon  the  trial. 
But  that  even  if  they  could,  the  notice  was  sufficient, 
when  given  within  eight  days  after  the  fire,  and  Ave 
days  after  the  assured  knew  of  the  fire.  New  York 
Central  Ins.  Co.  v.  National  Protection  Ins.  Co.  20  Barb. 
N.  Y.  468.     1854.  " 

§  14.  Policy  required  notice  of  loss  and  particulars 
thereof  as  soon  after  as  possible.  There  were  two  sep- 
arate policies  issued  to  assured — one  on  a  shop,  and  the 
other  on  goods  contained  in  it.  Both  building  and 
goods  were  destroyed.  It  appeared  that  the  fire  took 
place  on  the  13th  of  June,  and  the  notices,  both  as  to 
shop  and  goods,  were  given  on  the  13th  of  July.  The 
defendants  then  entered  into  correspondence  with  the 
assured  as  to  furnishing  better  particulars,  which  were 
afterwards  furnished ;  and  they  then  refused  to  pay  for 
the  goods  on  account  of  some  suspicious  circumstances 
attending  the  fire,  but  they  paid  the  amount  insured  on 
the  house.    Held,  that  under   the  circumstances  the  de- 


.'   M 


m 


410 


NOTICE  OP  LOSS. 


fendants  were  precluded  from  objecting  to  the  sufficiency 
of  the  notices,  or  to  the  time  at  which  th^  Wv.re  given. 
Larapkin  v.  Ontario  Marine  &  Fire  Ins.  (Jo.  12  Upper 
Canada,  Q.  B.  578.     1854. 

§  15.    Where  condition  of  policy  requires  notice  of 
loss  fortliwith,  it  will  be  understood  to  require  the  use  of 
^  due  diligence,  and  that  it  shall  be  given  within  a  reason- 
able time,  under  the  circumstances.      Peoria  Ins.  Co.  v. 
Lewis,  18  111.  553.     1857. 

§  16.  •  Where  policy  required  "immediate  notice  of 

loss,"  and  the  notice  was  not  given  until  eleven  days  after 

j   the  fire,  no  sufficient  excuse  being  shown  for  the  delay ; 

^"^^  Jleld,  that  the  notice  was  too  late,  and  not  a  compliance 

with  the  provision.    Trask  v.  State  Fire  &  Marine  Ins. 

Co.  29  Penn.  St.  198.     1858. 

§  17.  The  facts  that  the  secretary  of  the  company 
received  a  "  notice  of  loss  "  without  objection  as  to  delay 
in  giving  it,  and  gave  instructions  to  the  insured  as  to  the 
form  of  his  statement  of  loss,  and  that  an  agent  of  the 
company  subsequently  made  examinations  respecting  the 
loss,  is  not  a  waiver  of  the  requirement  of  due  and  timely 
notice.  Trask  v.  State  Fire  &  Marine  Ins.  Co.  29  Penn. 
St.  198.     1858. 

§  18.  Under  policy  of  insurance,  "  on  stock  of  grain 
in  mill,"  which  provided  for  "  notice  of  loss  forthwith,"  to 
be  sent  to  the  secretary  or  other  authorized  officer  of  the 
company,  the  assured  notified  one  of  the  directors  the 
morning  after  the  fire,  who  agreed  to  give  notice  to  the 
company,  ten  miles  distant,  the  day  following,  and  though 
there  was  no  evidence  that  such  notice  had  in  fact  been 
given,  yet  a  few  days  afterwards  the  president  of  the 
company  and  another  director  <Jame  to  the  ruins,  examined 
the  circumstances  attending  the  loss,  and  also  the  amount 
thereof,  but  said  nothing  about  the  want  of  notice.  On 
the  25th  of  same  month,  or  eleven  days  after  the  fire,  the 
assured  sent  a  formal  notice  of  the  loss  to  the  company, 
with  the  particulai;  statement  under  oath,  as  required  by 
the  condition. 

Held,  1st,  that  proof  of  the  "  notice  of  the  loss"  was  a 


n 


NOTICE  OF  LOSS. 


411 


condition  precedent,  and  essential  to  the  plaintiff's  right  I 
to  recover ;  2d,  that  neglect  to  give  such  notice  could  not  I 
be  compensated  by  a  deduction  from  the  claim  of  assured ;  I 
3d,  that  a  director  of  the  company  was  not  an  authorized 
officer,  to  whom  such  notice  could  be  given  ;  but  4th,  that 
such  notice  might  be  waived  by  the  insurers,  and  that  the 
jury  might  find  from  the  conduct  of  the  parties  whether 
there  had  or  had  not  been  such  a  waiver.     Inland  Ins.  & 
Deposit  Co.  V.  Stauffer,  33  Penn.  St.  397.     1859. 

§  19.  A  requisition  in  a  policy  of  insurance,  that  the 
assured  shall  forthwith  give  notice  of  a  loss  to  the  com- 
pany, is  not  complied  with,  by  giving  notice  at  the  expira-  s^. 
tion  of  twenty  days,  although  the  particular  account  of 
the  articles  lost  and  damaged  accompany  the  notice. 
Whitehurst  v.  North  Carolina  Mut.  Ins.  Co.  7  Jones  Law, 
N.  C.  433.     1860. 

§  20.  Where  charter  and  by-laws  of  mutual  insurance 
company  require  a  notice  of  loss  within  thirty  days  after 
the  loss  or  damage  has  occurred,  if  a  notice  of  loss  is  given 
as  required  by  the  policy,  and  it  is  defective,  the  company 
should  object  to  it  in  season  to  allow  the  assured  to  remedy 
the  defect ;  otherwise  they  will  be  considered  as  waiving 
exceptions  for  that  cause.  Bartlett  v.  Union  Mut.  Fire 
Ins.  Co.  46  Me.  500.     1859. 

§  Si.  Where  the  by-laws  of  an  insurance  company 
require  the  assured  to  give  notice  in  writing  of  a  loss, 
within  sixty  days,  a  letter  written  by  an  agent  of  the  com- 

{)any,  at  the  request  of  the  assured,  giving  notice  of  the 
OSS,  and  sent  in  due  time,  ia  a  sufficient  compliance  with 
the  requirement,  although  the  fact  of  its  having  been 
written  at  the  request  of  the  insured,  does  not  appear  in 
the  letter.  Stimpson  v.  Monmouth  Mut.  Fire  Ins.  Co.  47 
Me.  379.     1860. 

§  22.  The  requirements  of  a  policy  that  the  insured, 
in  case  of  loss,  should  give  to  the  secretary  of  the  company, 
in  writing,  a  particular  account  of  the  loss,  are  not  waived 
by  the  president  of  the  company  examining  the  books  of  the 
insured  to  ascertain  their  loss,  or  by  his  giving  the  insured 
at  their  request  a  memorandum  of  what  the  statement 


412 


NOTICE  OF  LOSS. 


sliould  contain.    Lycoming  County  Ins.  Co.  v.  Updegraff, 
40Penn.  St.  311.     1861. 

§  23.  Where  notice  of  a  loss  is  required  to  be  ffiven 
to  the  secretary  of  the  company  by  the  assured,  in  writing, 
a  written  notice  to  the  secretary  from  the  local  agent,  upon 
information  conveyed  to  him  by  the  assured,  is  sufficient. 
"West  Branch  Ins.  Co.  v.  Helfenstein,  40  Penn.  St.  289. 
1861. 

§  24.  A  condition  that  notice  of  the  loss  be  given  to 
the  company  forthwith,  requires  from  the  assured  due  dili- 
gence under  all  the  circumstances  of  the  case ;  therefore, 
notice  of  a  loss  at  T.,  given  verbally  to  the  local  agent  at 
S.,  twelve  miles  distant,  and  by  him  communicated  to  the 
secretary  at  L.,  seventy  miles  distant,  within  five  days  after 
the  fire,  is  a  substantial  compliance  with  the  requirements 
of  the  policy,  and  is  in  time.  West  Branch  Ins.  Co.  v. 
Helfenstein,  40  Penn.  St.  289.     1861. 

§  25.  If  the  condition  of  a  policy  requires  notice  of  a 
loss  to  be  given  in  writing  to  the  secretary,  or  one  of  the 
director,  notice  by  parol  to  an  agent  will  be  of  no  effect. 
Patrick  v.  Farmers'  Ins.  Co.  43  N.  H.  621.     1862. 

§  26.  Where  a  policy  of  insurance  provides  that  the 
"loss  or  damage  shall  be  paid  within  sixty  days  after  due 
notice  and  proof  thereof,  in  conformity  to  the  conditions 
annexed  to  this  policy,"  no  action  can  be  maintained 
thereon  until  the  notice  is  given,  and  the  required  proof 
is  furnished.    Davis  v.  Davis,  49  Me.  282.     1862. 

§  27.  A  vote  by  the  directors  of  an  insurance  com- 
pany to  indefinitely  postpone  the  subject  of  a  loss,  will 
not  be  deemed  a  waiver  of  a  condition  of  the  policy,  re- 
quiring notice  of  the  loss  to  be  given  within  thirty  days. 
A  defect  in  time  of  the  notice  stands  on  different  ground 
from  a  defect  in  its  matter ;  and  the  silence  of  the  com- 
pany as  to  such  defect  should  not  be  deemed  a  waiver. 
Patrick  v.  Farmers'  Ins.  Co.  43  N.  H.  621.     1862. 

§  28.  A  notice  of  loss  will  not  be  rendered  ineffectual 
by  an  omission  to  mention  that  the  debt  of  the  assignee  of 
the  policy,  as  mortgagee,  was  also  secured  on  other  prop- 


NOTICE  OF  L0S8. 


413 


erty. 
1863. 


Barnes  v.  Union  Mut.  Fire  Ins.  Co.  45  N.  H.  21. 


§  29.  It  is  an  error  to  submit  to  the  jury  the  question 
of  notice  to  the  defendant  of  other  insurance,  where  the 
evidence  shows  that  none  was  given  to  the  company  or  its 
authorized  agent,  but  only  that  the  fact  was  ascertained 
by  the  agent  of  another  insurance  company  while  transact- 
ing business  for  his  principal,  and  was  not  communicated 
to  the  defendant.  Lycoming  Ins.  Co.  v.  Mitchell,  48  Penn. 
St.  368.     1864. 

§  30.  Where  a  policy  contains  a  condition  that  "  all 
persons  insured  by  the  company  shall  deliver  a  particular 
account  of  loss  or  damage,  signed  by  their  own  hands,  con-  - 
taining,"  <fec.,  <fec.,  a  notice  by  a  third  person  for  the  insured, 
such  person  being  interested  in  the  policy,  but  not  an  agent 
of  the  insured,  is  not  sufficient.  Ayres  v.  Hartford  Fire 
Ins.  Co.  17  Iowa,  176.     1864. 

§  31.  Where  a  condition  of  an  insurance  policy  re- 
quires that  the  assured  shall  give  written  notice  of  the 
loss  to  the  secretary  of  the  company  within  twenty  days 
after  it  occurs,  an  oral  notice  to  the  local  agent  two  days 
after  the  loss,  and  written  notice  to  the  secretary  more 
than  a  month  afterwards  is  not  a  substantial  compliance 
with  the  condition.  Cornell  v.  Milwaukee  Mut.  Fire  Ins. 
Co.  18  Wis.  387.     1864. 

§  32.  Where  a  written  notice  of  loss,  given  after  the 
expiration  of  the  time  limited,  states  tLat  the  assured  had 
given  the  company  verbal  notice  within  the  time  limited, 
through  its  agent  (naming  him),  a  neglect  of  the  company 
to  object  at  the  time  to  this  statement  is  not  a  waiver  of 
its  right  to  object  to  the  notice  as  insufficient  on  the 
trial.  Cornell  v.  Milwaukee  Mut.  Fire  Ins.  Co.  18  Wis. 
387.     1864. 

§  33.  After  an  insufficient  notice  of  loss  was  given, 
the  secretary  of  the  company  wrote  to  the  attorneys  of 
the  assured  (who  had  requested  a  settlement)  that  the 
president  of  the  company  would  be  in  their  place  on  a 
specified  day  to  arrange  the  matter ;  and  afterwards  wrote 
them  that  the  matter  was  in  the  hands  of  the  company's 


/[ 


I  I 


414 


NOTICE  or  LOSS. 


attorney,  and  when  he  returned  to  town,  the  company 
could  inform  them  what  would  be  done.  Held^  that  these 
statements  did  not  constitute  any  waiver  of  the  company's 
right  to  object  to  the  notice  as  insufficient.  Cornell  v. 
Milwaukee  Mut.  Fire  Ins.  Co.  18  Wis.  387.     1864. 

§  34.  A  failure  to  request  further  proof  on  receipt  of 
notice  is  a  waiver  of  the  insufficiency.  Walker  v.  Metro- 
politan Ins.  Co.  56  Me.  371.     1868. 

§  35.  A  railroad  company  insured  against  their  lia- 
bility for  loss  caused  to  the  property  of  others  by  locomo- 
tive sparks,  must  give  the  notice  and  proofs  of  loss  required 
from  assured  when  his  own  property  is  lost.  Eastern  R. 
K.  Co.  V.  Relief  F.  Ins.  Co.  98  Mass.  420.     1868. 

§  36.  A  not' oe  of  loss  given  to  a  local  agent,  that 
produces  the  result  of  inducing  the  sending  of  the  general 
agents  to  investigate,  is  sufficient  without  reference  to 
particulars.  Ins.  Co.  of  N.  America  v.  McDowell,  50  111. 
120.     1869. 

§  37.  Receiving  a  notice  of  loss  sent  by  local  agent 
at  insurer's  request,  without  objection,  is  a  waiver  of  all  ex- 
ceptions to  it,  though  the  policy  required  the  notice  to  be 
a  sworn  statement,  and  only  a  letter  was  sent.  Works  v. 
Farmers'  M.  F.  Ins.  Co.  57  Me.  281.     1869. 

§  38.  It  is  for  the  jury  to  say  whether  the  assured 
gave  notice  of  \o%b  forthwith ;  but  if  the  company,  in  di- 
recting its  agent  afterwards  to  forward  the  proofs,  and  in 
its  negotiations  raised  no  such  question,  passing  on  the 
claim  on  other  grounds,  the  jury  may  find  a  strict  compli- 
ance has  been  waived.  Semble,  the  court  cannot  charge 
whether  a  notice  after  eight  days  is  or  is  not  a  notice 
forthwith.  May  v.  Buckeye  Mut.  Ins.  Co.  25  Wis.  291. 
1870. 

§  39.  The  policy  required  the  insured  to  give  notice 
of  the  fire  to  tne  "  secretary  forthwith."  The  day  after 
the  fire  the  local  agent,  with  counsel,  examined  the  prem- 
ises, examined  the  insured  under  oath,  and  sent  the  latter's 
sworn  statement  to  the  secretary  next  day.  Held^  a  suffi- 
cient notice;  for  the  assured  may  constitute  the  agent  h'" 
own  attorney  to  send  it,  and  how  it  reached  its  destination 


OTHEB  INSURANCE. 


415 


being  immaterial.    Beatty  v.  Lycoming  County  Mut.  Ins. 
Co.  66  Pa.  St.  9.     1870. 

§  40.  Assured  proving  that  he  has  given  the  notice  of 
loss  required  by  tne  policy,  need  not  show  that  he  has 
given  that  provided  by  statute  also.  Campbell  v.  Mon- 
mouth Mut.  F.  Ins.  Co.  59  Me.  430.     1871. 

§  41.  -The  clause,  "  In  case  of  loss,  the  assured  shall 
give  immediate  notice  thereof,  and  shall  render  to  the 
company  a  particular  account,  stating,"  <fec.,  means  that 
the  notice  must  be  given  immediately ;  the  most  that  can 
be  claimed  as  to  the  proofs  is,  that  they  shall  be  furnished 
in  a  reasonable  time.  Verbal  notice  to  defendant's  local 
agent  is  notice  to  defendant.  Killips  v.  Putnam  F.  Ins.  Co. 
28  Wis.  472.     1871. 

See  Agent,  §  85.    Estoppel,  6.    Preliminary  Proofs,  S:'^  61, 70.    Questions 
for  Court  and  Jury,  11,  13.    Kevival  and  Suspension  of  Policy,  6. 


OTHER  INSURANCE. 

§  1.     Where  one  policy  was  on  goods  and  the  other 
on  store  and  goods;  HeQy  tha^i  the  second  policy  pro- 
tected the  goods  from  the  same  peril,  and  was,  therefore,. 
a  double  insurance.    Harris  v.  Ohio  Ins.  Co.  5  Ohio,  467. 
1832. 

§  2.  Where  policy  provided  "  that,  if  other  insurance 
is  effected  on  the  same  property,  the  assured  would  give 
notice  and  cause  the  same  to  be  endorsed  on  the  policy ;  " 
Helil,  that  assured  must  prove  that  he  gave  such  notice  of 
subsequent  policies,  or  he  could  not  recover.  Harris  v. 
Ohio  Ins.  Co.  Wright,  Ohio,  554.     1834. 

§  3.  Where  policy  prohibited  any  other  insurance 
without  notice  and  consent  of  the  company,  and  provided 
that  in  case  of  other  insurance  with  such  consent,  that  the 
company  should  pay  only  that  proportion  of  the  loss  which 
its  policy  bore  to  the  whole  amount  insured ;  Held^  that  a 
policy  taken  out  by  the  vendor  of  a  dwelling-house,  which 


W 


416 


OTHEB  nTSUEANOE. 


assured  had  purchased  and  on  which  he  obtained  the 
policy  in  suit,  was  not  other  insurance  within  the  meaning 
of  t^e  condition,  and  did  not,  therefore,  avoid  his  policy, 
or  compel  him  to  receive  but  a  proportional  part  of  his 
loss  from  defendant  company.  That  such  clause  referred 
only  to  insurances  effected  by  himself  or  his  assigns, 
^tna  Ins.  Co.  of  New  York  v.  Tyler,  12  Wend.  N.  Y.  507. 
1834.    Affirmed,16Wend.  N.  Y.  385.     1836. 

§  4.  Policy  to  warehouseman  on  goods,  "  his  own,  in 
trust,  or  on  commission,"  with  condition,  that  a  failure  to 
endorse  on  it  an  insurance  on  any  of  the  goods  in  another 
company  would  avoid  the  policy.  Some  of  the  goods 
deposited,  to  wit,  some  wheat,  were  covered  by  a  floating 
policy  to  the  depositor,  which  was  not  endorsed  on  the 
policy  of  the  warehouseman,  and  which  expired  before  the 
fire.  H  4at  the  floating  policy  to  the  depositor  was 
not  witl  ■'  condition;  and  that  the  warehouseman  and 
depositor  might  jointly  recover  from  the  company  the 
value  of  (l^.e  wheri.  Donaldson  v.  Manchester  Ins.  Co.  14 
Cases  in  the  "' oui  o  .>i  Sessions,  601.     1836. 

§  5.  A  policy  is  not  avoided,  under  a  condition  re- 
quiring notice  of  subsequent  insurance,  because  a  second 
policy  without  notice  had  been  taken  in  the  name  of  a 
mortgagee  of  the  first  insured ;  for,  if  the  second  policy 
.  was  effected  by  the  mortgagee  for  his  own  exclusive  ben- 
efit, it  was  not  within  the  condition,  and  if  it  was  taken 
for  the  benefit  of  mortgagor,  and  this  should  be  deemed 
within  the  condition,  then  the  second  policy  was  itself 
void,  under  a  condition  in  it  requiring  notice  of  the  prior 
policy.  Jackson  v.  Massachusetts  Mut.  Fire  Ins.  Co.  23 
Pick.  Mass.  418.     1839. 

§  6.  Proof  that  assured  informed  insurer  that  there 
was  a  prior  insurance  at  another  office,  but  adding  that  it 
was  on  other  property,  does  not  show  a  compliance  with 
the  condition  of  the  policy  requiring  "  notice  of  other  in- 
surance," <fec.  Stacey  v.  Franklin  Ins.  Co.  2  Watts  &  Serg. 
Pa.  506.     1841. 

§  7.  If  a  second  policy  contain  a  clause  "that  the 
policy  shall  be  void  if  the  assured  has  abeady  made  or 


OTHER    INSURANCE. 


417 


shall  make  any  other  insurance  on  the  same  property,  un- 
less the  same  be  allowed  by  the  said  company  and  speci- 
fied in  the  policy,  and  then  to  pay  ratably ;"  such  clause 
does  not  affect  the  first  policy,  if  the  assured  could  not  at 
any  time  recover  on  the  second.  Stacey  v.  Franklin  Ins. 
Co.  2  Watts  &  Serg.  Pa.  506.     1841. 

§  8.  Insurance  on  goods  in  store  is  not  additional  in- 
surance, under  a  policy  insuring  building  and  prohibiting 
any  other  insurance  on  property  "ponnected  with  it." 
Jones  V.  Maine  Mut.  Fire  Ins.  Co.  18  Me.  155.     1841. 

§  9.  The  first  insurance  by  a  fire  office  was  upon 
"merchandise  generally,  includmg  liquors  and  groceries 
contained  in  store  No.  37  South  Wharves,  for  the  use  of 
whom  it  may  concern,  say  merchandise  without  exception." 
A  second  policy  was  made  in  another  office  on  coffee  and 
other  merchandise  without  exception,  either  on  board  the 
J.  S.  in  this  port,  or  in  the  brick  store  No.  37  South 
Wharves,  in  city  of  Philadelphia."  A  loss  by  fire  hap- 
pened on  the  goods  in  store^  not  brought  in  the  J.  S.  or 
landed  therefi'om.  Held,  1st,  that  facts  and  circumstances 
outside  of  the  instrument  were  admissible  to  show  the  in- 
tention of  the  parties  as  to  the  second  policy  being  a 
specific  insurance  on  other  goods  not  covered  by  the  firsts 
and,  2d,  that  as  thus  explained  there  was  not  necessarily 
a  double  insurance ;  but  the  first  might  be  on  goods  gen- 
erally, in  the  store,  and  the  second  on  specific  goods 
merely,  brought  in  the  J.  S.  or  landed  therefrom.  Stacey 
V.  FrAuklin  Fire  Ins.  Co.  2  Watts  &  Serg.  Pa.  506.    1841. 

§  10.  A  condition  that  "persons  insuring  property 
at  this  office  must  give  notice  of  any  other  insurance,  made 
on  their  behalf,  on  the  same,  and  cause  such  other  insur- 
ance to  be  endorsed  on  the  policy;  in  which  case  each 
office  shall  be  liable  to  the  payment  of  a  ratable  propgrtion 
of  any  loss  or  damage  whicn  may  be  sustained,  and,  unless 
such  notice  is  given,  the  insured  will  not  be  entitled  to 
recover  in  case  of  loss,"  applies  to  subsequent,  as  well  as 
prior  insurance ;  and  failure  to  have  subsequent  insurance 
endorsed  will  avoid  the  policy.  Harris  v.  Ohio  Ins.  Co.  5 
Ohio,  467.     1832. 

§  11.    A  condition  that  "persons  insuring  property  at 

87 


1 


418 


OTHER    INSURANCE. 


this  office  must  give  notice  of  any  other  insurance  made  in 
their  behalf  on  the  same,  and  cause  such  other  insurance 
to  be  endorsed  on  the  policy;  in  which  case  each  office 
shall  be  liable  to  the  payment  of  a  ratable  proportion  of 
any  loss  or  damage  which  may  be  sustained,  and,  unless 
such  notice  is  given,  the  insured  will  not  be  entitled  to 
recover  in  case  of  loss ;"  applies  to  subsequent,  as  well  as 
to  prior,  insurances.  Stacey  v.  Franklin  Fire  Ins.  Co.  2 
Watts  &  Serg.  Pa.  606.     1841. 

§  12.  Part  owner  insured  his  two-fifths  moiety  in  the 
Franklin  Insurance  Company.  Afterwards  the  other  part 
owner  insured  $10,000  on  same  property,  as  "Tmstee," 
for  the  benefit  of  the  children,  but  not  on  behalf  of  first 
assured,  as  trustee  had  notice  of  first  insurance.  Jfeld^ 
that  such  second  insurance  did  not  avoid  the  first  policy, 
as  it  was  not  an  additional  insurance  within  the  meanings 
of  the  condition  prohibiting  it.  Franklin  Ins.  Co.  v.  Drake, 
2  B.  Monroe,  Ky.  47.     1841. 

§  13.  A  policy  obtained  by  misrepresentation  of  cost 
and  value  of  premises  insured,  is  voidable,  and  not  void ; 
and  a  second  underwriter,  under  condition  in  policy  re- 
quiring notice  of  prior  insurance,  is  entitled  to  notice  of 
the  same.  And  it  is  further  argued  by  Judge  Story,  that 
stipulations  as  to  prior  and  subsequent  policies  are  designed 
to  apply  to  all  cases  of  policies  then  existing  in  point  of 
fact,  or  whether  they  be  void  or  voidable.  Carpenter  v. 
Providence  Washington  Ins.  Co.  16  Pet.  U.  S.  495.     1842. 

§  14.  A  policy  which  has  been  assigned  to  a  mort- 
gagee as  collateral  security,  is  within  the  provision  in  a 
subsequent  policy  requiring  notice  of  previous  insurance. 
Carpenter  v.  Providence  Washington  Ins.  Co.  16  Pet.  U. 
S.  495.     1842. 

§  15.  At  law,  whatever  may  be  the  rule  in  a  case  in 
equity,  parol  notice  is  not  a  compliance  with  the  condition 
of  the  policy,  requiring  other  insurance  to  be  endorsed  in 
writing  on  the  policy.  Carpenter  v.  Providence  Wash- 
ington Ins.  Co.  16  Pet.  U.  S.  495.     1842. 

§  16.  Assured  applied  to  the  agent  of  the  defendant 
company  for  an  insurance  of  two  thousand  dollars,  stating 


OTHER  INSURANCE. 


419 


u. 

I  in 

don 

in 

ash- 

lant 
ting 


in  reply  to  inquiry  of  the  agent,  that  he  had  no  other  in* 
surance  on  the  property.  In  fact,  he  had  already  insured 
two  thousand  dollars  in  another  company,  and,  with  con- 
sent of  that  company,  assigned  the  policy  to  a  creditor 
from  whom  he  had  purchased  the  goods,  and  to  whom  he 
was  yet  indebted  for  the  balance  of  the  purchase  money. 
The  policy  in  suit  provided,  "  that  it  should  be  void  if 
prior  insurance  were  not  expressed  in  the  policy."  Held^ 
that  the  policy,  by  its  terms,  was  void,  it  having  been  ob- 
tained by  fraud  and  misrepresentation.  Neve  v.  Columbia 
Ins.  Co.  2  McMuUin,  S.  C.  220.     1842. 

§  17.  Plaintiifs,  who  were  grocers,  had  two  policies  of 
insurance  on  their  stock  in  trade.  Having  subsequently 
purchased  the  stock  of  another  grocer,  which  had  been  in- 
sured by  the  defendants,  they  removed  their  own  stock  to 
the  establishment  of  their  vendor,  whose  policy  had  been 
transferred  to  them  with  the  consent  of  the  defendants. 
Plaintiflfe  also  obtained  from  their  own  insurers  transfers 
of  the  policies  on  the  stock  in  their  fonner  establishment 
to  the  same  stock  in  the  store  to  which  they  removed. 
The  policies  contained  the  usual  clause  requiring  notice  to 
insurers,  and  an  endorsement  on  the  policy  of  any  other 
insurance  elsewhere  on  the  stock  on  pain  of  forfeiture. 
Plaintiffs  omitted  to  notify  defendants  of  the  two  insur- 
ances previously  existing  on  their  stock.  The  stock  being 
injured  by  fire,  in, an  action  against  defendants ;  Z?i?Z<^ 
tliat  by  consenting  to  the  transfer  of  the  policy  to  the 
plaintiffs,  defendants  became  the  insurers  of  the  stock  in 
trade  of  the  former  in  the  store  to  which  they  removed, 
which  stock  consisted  of  the  goods  originally  covered  by 
their  policy,  and  of  plaintiffs'  stock  in  their  former  store ; 
that  the  latter  were  bound  to  give  defendants  notice  of 
the  two  insurances  previously  existing  on  their  stock,  and 
that  having  failed  to  do  so,  they  could  not  recover.'  Wal- 
ton V.  Louisiana  State  Marine  <fe  Fire  Ins.  Co.  2  Rob.  La. 
563.     1842. 

§  18.  Policy  stipulated  "that  notice  of  other  insur- 
ance must  be  given  and  endorsed  on  the  policy,  or  other- 
wise acknowledged  and  approved  in  writing,  or  else  the 
policy  should  be  void."    Assured  effected  a  second  insur- 


420 


OTHER  INSURAlfCE. 


ance  on  the  property,  and  notified  the  company  by  letter 
of  the  same.  The  secretary  replied, "  I  have  received  your 
notice  of  additional  insurance."  Held,  that  this  was  an 
approval  and  acknowledgment  in  writing,  within  the 
meaning  of  the  condition ;  and  that  after  receipt  of  the 
notice,  the  policy  continued  in  full  force,  until  the  com- 
pany made  their  election  to  terminate  the  policy,  and 
maae  known  to  the  assured  such  determination.  Potter 
V.  Ontario  &  Livingston  Mut.  Ins.  Co.  5  Hill,  N.  Y.  147. 
1843. 

§  19.  Where  policy  of  insurance  contained  the  usual 
stipulation  in  regard  to  forfeiture  of  policy,  if  prior  or  sub- 
sequent insurances  existed,  or  were  taken,  without  notice 
and  consent,  proof  that  another  policy  was  obtained  on 
the  property,  which  was  not  notified  to  the  insurer,  will 
discharge  the  latter  from  all  liability.  Battaille  v.  Mer- 
chants'Ins.  Co.  of  N.  O.  3  Kob.  La.  384.     1843. 

§  20.  Where  policy  provided,  that  in  case  the  assured 
had  already  made  any  other  insurance  on  the  same  prop- 
erty, not  notified  to  the  corporation,  the  policy  should  be 
void ;  and  the  conditions  annexed  further  provided,  that 
all  applications  for  insurance  should  be  in  writing,  <fec., 
but  application  made  no  inquiry  as  to  other  insurances, 
and  at  time  of  application  the  plaintiff  verbally  made 
known  to  the  agent  ('who  was  only  authorized  to  receive 
and  forward  applications,  solicit  insurances,  and  receive 
premium  notes  and  cash  percentage  thereon)  a  prior  in- 
surance already  existing,  but  agent  failed  to  put  it  in  the 
application,  or  otherwise  notify  the  company  of  it ;  Held, 
1st,  that  in  the  absence  of  any  stipulation  in  the  policy 
requiring  notice  of  other  insurance  to  be  in  writing,  and 
no  question  in  the  application  concerning  it,  parol  notice 
was  sufficient;  2d,  that  such  notice  to  the  agent,  only 
authorized  as  above,  and  while  actually  engaged  in  pre- 
paring an  application  for  the  policy  m  question,  was 
within  the  scope  of  his  authority,  and  binding  on  the 
company,  though  it  never  reached  them.  M^wen  v. 
Montgomery  County  Mut.  Ins.  Co.  5  Hill,  N.  Y.  101. 
1843. 

§  21.    Where  a  policy  of  insurance  provides  that  "in 


OTHEB  INSURANCE. 


421 


case  of  other  insurance  against  loss  by  fire  on  the  property 
hereby  insured,  not  notified  to  this  corporation,  and  men- 
tioned in  or  endorsed  on  this  instrument,  or  otherwise  ac- 
knowledged by  them  in  writing,  this  insurance  shall  be 
void ; "  and  a  third  person,  to  \vhom  the  property  insured 
had  been  transferred,  and  to  whom  the  policy  was  assigned 
with  the  assent  of  the  assurers,  fails  to  notify  the  latter,  at 
the  time  of  the  transfer,  of  another  policy  previously  taken 
out  by  him  on  the  same  property,  tne  insurers  will  be  dis- 
charged. A  declaration  of  the  first  insurance,  made  after 
the  loss,  in  compliance  with  the  stipulation  that  assured 
shall  declare  on  oath  whether  any  and  what  other  insur- 
ance has  been  made  on  the  same  property,  will  be  too 
late.  Levitt  v.  West _rn  Marine  &  Fii*e  Ins.  Co.  7  Rob. 
La.  351.     1844. 

§  22.  A  policy  covering  a  three-story  brick  building 
called  the  Central  Exchange,  provided  that  "  all  policies 
which  may  issue  ft'om  this  company  to  cover  property 
previously  insured,  shall  be  void,  unless  such  previous 
msurance  be  expressed  in  the  policy  at  the  time  it  issues." 
On  the  margin  of  the  policy,  when  issued,  was  written, 
"  Five  thousand  dollars  insured  by  the  Worcester  Mutual 
Insurance  Company."  It  appeared  that  the  insurance  in 
the  Worcester  Mutual  Company  was  in  fact  but  $4,700 
on  the  building,  and  $300  on  a  barn  on  the  premises ; 
and  that  the  policy  on  the  building  included  also  a  wooden 
end,  which  was  not  covered  by  the  defendant's  policy; 
Jleldf  that  a  compliance  with  the  above-mentioned  by-law 
was  a  condition  precedent  to  a  recovery,  in  cases  where  it 
applied,  but  that  in  the  present  case,  the  notice  expressed 
in  the  policy  was  a  substantial  compliance  with  the  by- 
law, and  a  sufficient  exposition  of  the  fact  of  the  former 
insurance,  although  all  the  prior  insurance  was  nojb  upon 
the  same  building  embraced  in  defendant's  policy.  Lis- 
com  V.  Boston  Mut.  Fire  Ins.  Co.  9  Met.  'Masa.  205. 
1845. 

§  23.  Verbal  notice  of  a  prior  insurance,  given  at  the 
time  of  making  application,  to  an  agent  authorized  to 
make  surveys  and  receive  the  cash  percentage  and  the  pre- 
mium note,  is  sufficient,  where  the  condition  relating  to 


422 


OTHER  INSURANCE. 


I     ) 


prior  insurance  only  requires  "that  notice  thereof  shall 
be  given  to  the  company.  Sexton  v.  Montgomery  County 
Mut.  Ins.  Co.  9  Barb.  N.  Y.  101.     1848. 

§  24.  The  charter,  to  which  the  policy  was  made  sub- 
ject, provided,  that  in  case  of  other  insurance  on  the  same 
property,  the  policj^  should  be  void,  "  unless  such  double 
insurance  subsist  with  the  consent  of  the  directors,  signi- 
fied by  endorsement  on  the  back  of  the  policy,  signed  by 
the  president  and  secretary."  The  plaintiff  took  a  policy 
for  five  years,  which  was  signed  by  the  president  and  sec- 
retary, and  which  recited  on  its  race  that  $2,500  was  in- 
sured "in  a  company  in  Concord."  Held^  that  the  require- 
ments of  the  charter  were  substantially  complied  with. 
And  further  held,  that  the  contract  must  be  considered  to 
be  an  insurance  for  five  years,  with  a  double  insurance  to 
the  amount  of  $2,500,  to  subsist  during  the  whole  term  ; 
and  that,  at  the  expiration  of  the  Concord  policy,  plaintiff 
was  at  liberty  to  lenew  it,  or  to  take  a  policy  for  the  same 
amount  in  any  other  company,  without  giving  any  further 
notice  to  the  company.  Baptist  Society  v.  Hillsborough 
Mut.  Fire  Ins.  Co.  19  N.  H.  580.     1849. 

§  25.  Where,  in  obtaining  a  second  policy,  assure^' 
represented  that  the  same  property  was  already  insure 
in  another  company  for  $4,000,  and  it  was  so  expressed  in 
the  policy,  when  in  fact  the  prior  policy  did  not  cover  all 
the  property  insured  by  defendants;  Heldy  that  the  as- 
sured was  estopped  by  his  representation,  and  by  the 
terms  of  the  policy,  to  assert  that  the  specific  property  in- 
sured by  the  defendants  was  not  insured  to  the  amount 
and  in  the  manner  he  had  represented  it  to  be,  and  as 
between  these  parties,  the  fact  should  be  taken  as  it  was 
represented.  McMahon  v.  Portsmouth  Marine  &,  Fire  Ins. 
Co.  2Fost.  N.H.  15.     1850. 

§  26.  Where  policy  stipulated  that  if  assured  should 
effect  a  subsequent  insurance  on  the  property  without  no- 
tice and  consent  of  the  company,  <fec.,  the  policy  should  be 
void ;  Held,  that  a  second  policy,  taken  out  by  the  assured, 
which  was  void  on  account  of  misrepresentation,  was  not  an 
insurance  within  the  prohibition.  Clark  v.  New  England 
Mut.  Fire  Ins.  Co.  6  Cush.  Mass.  342.    1850. 


jl! 


OTHER  INSURANCE. 


423 


§  27.  The  mere  fact  that  a  prior  policy  is  represented 
to  a  subsequent  insurer  to  be  on  the  same  property,  when 
in  fact  it  does  not  embrace  all  the  property  covered  by 
defendant's  policy,  or  that  the  first  policy  is  in  specific 
amounts,  whdst  the  second  one  is  general,  will  not  avoid  a 
policy  of  insurance,  because  the  insured  is  not  bound  to 
give  any  details  unless  inquired  of,  or  required  so  to  do 
by  the  by-laws.  McMahou  v.  Portsmouth  Fire  Ins.  Co.  2 
Fost.  N.  U.  15.     1850. 

§  28.  When  by-law  provides  that  consent  to  addi- 
tional insurance  may  be  given  by  the  president  and  secre- 
tary, and  no  other  mode  of  skiving  such  consent  is  provided 
for,  it  is  an  error  to  char^^o  the  juit  that  it  may  be  given 
by  a  secretary  or  director.  Stark  County  Mut.  Ins.  Co.  v. 
Hurd,  19  Ohio,  149.     1850. 

§  29.  The  18th  section  of  the  company's  charter,  de- 
claring a  double  insurance  on  a  house  or  building  without 
consent  of  the  company  an  avoidance  of  the  policy,  does 
not  render  a  policy  on  merchandise  void,  although  addi- 
tional insurance  had  been  taken  without  notice  to,  or  con- 
sent of,  the  company,  on  said  merchandise.  Illinois  Mut. 
Fire  Ins.  Co.  v.  O'Neile,  13  El.  89.     1851. 

§  30.  The  by-laws  annexed  to  the  policy  provided 
that  prior  insurance,  unless  expressed  in  the  policy,  should 
avoid  it.  In  this  case  there  was  prior  insurance  not  ex- 
pressed in  the  policy.  Held^  that  the  policy  was  void ; 
and  that  parol  evidence  was  not  admissible  to  show  that 
the  prior  insurance  was  known  to,  and  assented  to,  by  the 
company,  and  that  the  policy  was  received  by  assured,  sup- 
posing it  contained  a  recital  thereof.  BaiTett  v.  Union 
Mut.  Fire  Ins.  Co.  7  Cush.  Mass.  175.     1851. 

§  31.  The  policy  was  made  payable  in  case  of  loss 
to  Q.,  who  assigned  to  another  party.  The  policy  was 
void,  because  of  prior  insurance  not  expressed  in  the 
policy.  The  point  was  made  that  the  failure  to  insert 
the  fact  of  prior  insurance  should  not  prejudice  the  plaiut- 
iflfs,  who  were  assignees,  without  notice.  Not  sustained. 
Barrett  v.  Union  Mut.  Fire  Ins.  Co.  7  Cush.  Mass.  175. 
1851. 


424 


OTHEB  INSUEANCE. 


li 


§  32.  Mere  knowledge  of  other  insurance  upon  tlie 
part  of  agent  of  the  company  is  of  no  avail  to  insured,  if 
not  endorsed  on  the  policy,  a  clause  in  the  policy  requiring 
such  endorsement.  Such  knowledge  is  not  a  waiver  of  no- 
tice of  such  insurance.  Forbes  v.  Agawam  Mut.  Ins.  Co.  9 
Cush.  Mass.  470.     1852. 

§  33.  Insurance  by  a  mortgagee  of  his  interest  is  not 
within  the  clause  of  a  prior  policy,  in  favor  of  the  mort- 
gagor, prohibiting  him  from  making  other  insurance  with- 
out notice ;  but,  if  such  insurance  is  made  at  the  expense 
of  the  mortgagor,  and  may  be  applied  to  his  benefit,  it  is 
within  the  clause,  and  would  avoid  the  prior  policy. 
Holbrook  v.  American  Ins.  Co.  1  Curtis  C.  C.  U.  S.  193. 
1852. 

§  34.  A  policy  of  insurance  provided  that  "  if  assured 
should  thereafter  make  any  other  insui'ance  on  the  same 
property,  and  should  not,  with  all  reasonable  diligence, 
give  notice  thereof,  and  have  the  same  endorsed  on  the 
policy,  or  otherwise  acknowledged  by  them  in  writing,  the 
policy  should  be  void."  The  inp^.red  subsequently  took 
out  another  policy  in  another  company  for  $1,500,  and 
wrote  to  the  defendants,  advising  them  of  the  same,  and 
received  in  writing  an  acknowledgment  of  his  notice,  sub- 
ject to  the  following  restriction :  "  That  in  event  of  dam- 
age or  partial  loss,  the  sum  recoverable  shall  not,  together 
with  all  insurance,  exceed  two-thirds  of  the  cash  value  of 
the  property  insured,  and  at  risk,  at  time  of  loss." 
There  being  no  evidence  that  assured  had  ever  assented 
to  such  restriction,  it  was  Held^  that  the  insurers  had  not 
reserved  a  right  in  the  policy  to  declare  it  void,  on  receiv- 
ing notice  of  another  insurance  on  the  same  property,  or 
to  prescribe  the  terms  and  amount  for  whicn  it  should 
subsequently  stand  good.  It  merely  required  the  insured, 
on  effecting  a  subsequent  insurance  on  the  same  property, 
to  give  notice  thereof  with  reasonable  diligence,  ana  have 
the  same  endorsed  on  the  policy,  or  otherwise  acknowl: 
ed^ed  in  writing.  This  the  insui-ed  had  done,  and  there 
being  no  clause  in  the  policy  other  than  that  in  acknowl- 
edgement referred  to,  restricting  the  liability  of  the  com  • 
pany  to  two-thirds  the  value  of  the  property,  the  assured 


OTHER  INSUBANOE. 


425 


miglit  recover  from  defendants  their  proportion  of  the  full 
value  of  the  property  destroyed,  not  exceeding  the  sum  in- 
sured. Westlake  v.  St.  Lawrence  County  Mut.  Ins.  Co.  14 
Barb.  N.  Y.  206.     1852. 

§  35.  A.  owned  a  mill,  and  gave  a  bond  to  B.for  one- 
half  of  it.  At  the  time  B.  agreed  with  A.  that  the  latter 
should  insure  B.'s  half,  for  his  own  benefit,  the  money  to 
apply  in  extinguishment  of  the  debt,  in  case  of  loss.  A. 
effected  an  insurance  on  the  whole  mill  with  defendants, 
whose  charter  prohibited  v.  double  insurance  by  any  other 
company, "  or  from  or  by  any  other  person  or  persons  at 
the  same  time ;"  Held,  that  the  agreement  between  A.  and 
B.  was  not  a  double  insurance  within  the  meaning  of  the 
condition.  Burbank  v.  Rockingham  Ins.  Co.  4  Fost.  N.  H. 
550.     1853. 

§  36.  Assured  effected  an  insurance  of  two  thousand 
dollars  with  defendant,  whose  charter  provided,  "  that  if 
any  other  insurance  shall  be  obtained  on  any  property  in- 
sured by  this  company,  notice  shall  be  given  to  the  secre- 
tary, and  the  consent  of  the  directors  obtained,  otherwise 
the  policy  issued  by  this  company  shall  be  void."  Subse- 
quently assured  made  an  application,  through  agent  of  the 
defendant's  company,  for  additional  insurance  of  $1,000. 
This  application  was  taken  to  the  secretary  of  the  defend- 
ant by  the  agent,  and  secretary  remarked  that  the  defend- 
ant could  not  insure  so  much  in  one  risk,  but  that  the  Union 
Company,  in  the  satiie  building,  and  of  which  he  was  also 
the  secretary,  would  take  it.  There  were  then  present 
two  directors  of  the  Union  Company,  and  after  examining 
application,  they  consented  to  take  the  risk.  These  direc- 
tors were  also  directors  in  defendant's  company.  In  an 
action  on  the  defendants'  policy,  the  defense  being  that  the 
consent  of  the  directors  had  not  been  obtained ;  Jleld,  that 
the  provision  with  reference  to  other  insurance  ha^  been 
substantially  complied  with,  and  that  parol  evidence  of 
the  above  fact  was  competent  to  show  notice  and  consent. 
Goodall  V.  New  England  Mut.  Fire  Ins.  Co.  5  Fost.  N.  H. 
169.     1852. 

§  37.    The  conditions  required  notice  to  be  given  of 
subsequent  insurance,  and  assent  thereto  endorsed  on  the 


i ! 


426 


OTHEB  INSUBANOE. 


policy,  or  it  should  become  void.  The  application  con- 
tained the  following  request:  "Applicant  asks  leave  to 
insui'e  $1,000  on  same  property  in  some  other  company. 
Please  signify  the  assent  of  the  company  in  the  policy." 
This  application  was  approved  by  an  endorsement  there- 
on, signed  by  a  director,  but  the  policy  contained  no  ex- 
pression of  assent.  HeMy  that  no  inference  of  assent  could 
be  inferred  from  the  endorsement  of  the  director,  but 
rather  the  contrary.  And  further  Jield^  that  a  recital  of 
the  fact  of  prior  insurance  in  the  applicatior  would  be 
notice  to  the  company  of  such  insurance ;  but  that  a  re- 
cital of  a  wish  to  obtain  subsequent  insurance  was  not 
notice  to  the  company  of  such  insurance  when  obtained. 
Forbes  v.  Agawam  Mut.  Fire  Ins.  Co.  9  Gush.  Mass.  470. 
1852. 

§  38.  The  policy  provided  that,  "  if  the  assured  shall 
have  already  any  other  insurance  against  loss  by  fire  on 
the  property  hereby  insured,  not  notified  to  this  company, 
and  mentioned  in  or  endorsed  on  this  policy,  then  this 
policy  shall  be  void  and  of  no  effect."  At  time  of  appli- 
cation for  this  policy,  assured  mentioned  to  the  agent  the 
existence  of  another  insurance  in  a  New  Hampshire  com- 
pany, and  the  agent  made  a  note  of  it  in  a  memorandum 
book,  which  contained  other  entries  relative  to  insurance 
and  to  private  matters,  but  the  policy  was  issued  and  ac- 
cepted by  assured  without  any  consent  therein  expressed, 
as  to  the  prior  insurance.  Held^  that  the  policy  was  void, 
and  parol  evidence  of  the  notice  to  the  agent  was  inad- 
missible, as  tending  to  vary  the  terms  of  the  \vritten  con- 
tract. Pendar  v.  American  Mut.  Ins.  Co.  12  Cush.  Mass. 
469.     1853. 

,  §  39.  The  policy  in  this  case  prohibited  any  subse- 
quent insurance,  without  noticje  and  consent  of  the  com- 
pany, and  required  notice  of  all  prior  insurances.  In  the 
application,  assured  stated  that  there  was  then  $8,000  in- 
sured on  the  property,  to  wit :  $5,000  in  the  ^tna,  and 
$3,000  in  the  Conway ;  but,  in  fact,  such  insurances  did  not 
then  exist,  but  were  intended  to  be  taken,  and  the  agent 
of  the  company  so  informed  at  the  time,  who  said  to  as- 
sured, that  if  this  insurance  of  $8,000  was  subsequently 


OTHEB  INSUEANCB. 


427 


effected  in  the  offices  named,  or  in  any  other  offices,  to  the 
same  amount,  it  would  be  sufficient.  Afterwards  the  as- 
sured made  additional  insurance  to  the  amount  of  $8,000, 
not  in  the  offices  mentioned  in  the  application,  but  in  Tren- 
ton and  Lafayette  companies,  and  gave  no  further  notice 
to  the  company  or  agent.  Held^  that  the  failure  to  notify 
the  defendants  of  this  subsequent  insurance  avoided  the 
policy,  and  that  evidence  showing  the  knowledge  of  the 
agent  was  inadmissible.  Conway  Tool  Co.  v.  Hudson 
Kiver  Ins.  Co.  12  Cush.  Mass.  144.     1853. 

§  40.  Where  the  first  policy  prohibited  a  subsequent 
insurance,  and  a  subsequent  insurance  wae  made  by  policy 
conditioned  to  be  void,  in  case  of  a  prior  insurance  with- 
out notice ;  Held^  that  the  second  policy  was  void,  if  notice 
of  a  prior  insurance  was  not  given,  and  did  not,  therefore, 
avoid  the  first  policy.  Schenck  v.  Mercer  County  Mut. 
Ins.  Co.  4  Zabr.  N.  J.  447.     1854. 

§  41.  Plaintiff  issued  a  policy  to  Walsh  for  $6,000, 
on  one-fourth  of  a  steamboat,  said  fourth  valued  at  $7,500, 
with  stipulation  "  that  if  any  other  insurance  should  be 
effected  by  which  a  greater  amount  than  $6,000  on  this 
one-fourth  of  the  steamboat  should  be  insured,  the  policy 
should  be  void."  Afterwards  defendants  procured  insur- 
ance in  another  company  upon  one-fifth  of  three-fourths  of 
said  steamboat,  valuing  the  said  three-fourths  at  $22,500, 
and  stating  that  $18,000  was  already  insured  on  the  said 
three-fourths.  This  one-fifth,  last  procured,  was  estimated 
at  $4,500 ;  and  making  in  all  $22,500,  the  estimated  value 
of  the  entire  three-fourths  of  the  boat ;  Held^  that  the 
first  insurance  was  thereby  increased  fifteen  hundred  dol- 
lars contraiy  to  express  stipulation,  and  the  policy  was , 
thereby  avoided.  Columbus  Ins.  Co.  v.  Walsh,  18  Mo. 
229.     1863. 

§  42.  A  condition  in  the  policy  required  ndtice  of 
other  insurance  to  be  endorsed  on  the  policy  or  otherwise 
acknowledged  in  writing.  The  assured  took  other  insur- 
ance and  gave  a  memorandum  of  it  to  the  agent  to  be  en- 
tered on  the  records  of  the  company,  the  policy  not  being 
at  hand,  and  the  agent  saying  that  such  entry  would  an- 
swer every  purpose.    The  agent  afterwards  returned  the 


428 


OTHEB  INSURAirOE. 


I  i 


memorandum,  sajdng  that  he  had  made  such  entry ;  but 
he  had  not  in  fact  done  so.  Held^  a  violation  of  the  con- 
dition. Worcester  Bank  v.  Hartford  Fire  Ins.  Co.  11  Cush. 
Mass.  265.     1853. 

§  43.  One  of  the  conditions  of  a  policy  issued  by  a 
mutual  insurance  company  was,  "  that  in  case  insurance 
shall  subsist  or  be  effected  upon  the  premises  or  property 
insured  by  the  company,  in  any  other  office,  or  from,  by 
or  with  any  other  person  or  persons,  during  the  continu- 
ance of  such  insurance,  the  policy  granted  thereon  by  the 
company  shall  be  void,  unless  such  double  insurance  sub- 
sist with  the  consent  of  the  directors,  signified  by  endorse- 
ment on  the  back  of  the  policy,  signed  bv  the  president 
and  secretary."  It  appeared  by  the  pleadmgs  that  three 
separate  sums  were  insured — on  a  building,  on  the  ma- 
chmery,  and  on  the  stock  in  it ;  and  a  second  insurance, 
without  the  consent  of  the  company,  was  effected  on  the 
building  and  machinery.  Held^  that  by  the  terms  of  the 
condition,  and  of  the  statute  under  which  this  company 
was  incorporated,  the  policy  was  wholly  avoided,  and  not 
merely  as  to  the  property  so  doubly  insured ;  and  also, 
that  it  was  immaterial  that  such  second  insurance  was 
with  a  foreign  company,  and,  therefore,  not  capable  of 
being  enforced  here,  as  it  was  an  insurance  in  fact  made, 
and  such  as  was  intended  to  be  prohibited  by  the  condi- 
tion. Ramsay  Woolen  Cloth  Manf.  Co.  v.  Mutual  Fire 
Ins.  Co.  11  Upper  Canada,  Q.  B.  516.     1853. 

§  44.  Where  policy  provided  "  that  if  any  prior  in- 
surance exist  on  the  property  hereby  insured,  this  policy 
shall  be  void,  unless  such  prior  insurance  be  endorsed  on 
this  policy  when  it  issues,"  and  at  time  of  taking  out 
such  policy,  assured  held  a  prior  policy  on  the  same 
property;  Held^  that  this  endorsement,  to  wit:  "Leave 
given  to  keep  insured  to  an  amount  not  exceeding  three- 
fourths  of  the  value  of  the  property,"  written  in  the 
policy  when  it  issued,  included  "  prior  "  as  well  as  "  sub- 
sequent" insurances,  and  was  a  substantial  compliance 
with  the  by-law,  requiring  notice  of  prior  insurance. 
Philbrook  v.  New  England  Mut.  Ins.  Co.  37  Me.  137. 
1853. 


OTHER  mSUBANCE. 


429 


§  45.  A  second  policy,  which  is  void,  does  not  vacate 
a  first  policy,  under  provisions  in  the  first  which  preclude 
a  second  insurance  without  notice  and  consent  of  the  com- 
pany, even  though  the  underwriters  of  the  void  policy 
compromise  and  pay  the  loss.  Philbrook  v.  New  England 
Mut  Ins.  Co.  37  Me.  137.    1853. 

§  46.  Agent  endorsed  consent  of  company  to  addi- 
tional insurance,  when  charter  required  that  consent  of 
directors  must  be  obtained ;  Held^  that  company  was  not 
confined  by  their  charter  to  a  single  secretary ;  that,  when- 
ever they  directed  any  agent  or  officer  to  perform  the  ap- 
propriate duties  of  a  secretary,  they  made  such  agent  or 
officer  secretary  for  that  purpose ;  and  evidence  showing 
the  exercise  of  such  authority  on  the  agent's  part  was  ad- 
missible. Peck  V.  New  London  County  Mut.  Ins.  Co.  22 
Conn.  575.     1853. 

§  47.  A  policy  was  executed  and  delivered  to  assured 
with  the  understanding  that  it  should  not  take  effect  until 
a  prior  policy  in  another  company  should  be  delivered  up 
and  canceled.  This  was  afterwards  done,  subsequent  to 
the  date  of  the  latter  policy.  The  subsequent  policy  con- 
tained a  provision  requiring  prior  insurance  to  be  endorsed 
on  it.  Ileld^  that  as,  by  the  understanding,  the  prior  policy 
was  to  be  canceled  before  the  subsequent  policy  went  into 
effect,  no  endorsement  of  the  former  was  required  to  be 
made  on  the  latter.  Atlantic  Mut.  Fire  Ins.  Co.  v.  Good- 
all,  9  Fost.  N.  H.  182.     1854. 

§  48.  Where  by-law  required  "  notice  of  any  other  in- 
surance "  to  be  given,  without  specifying  that  such  notice 
must  be  in  writing ;  Held,  that  verbal  notice  to  an  agent 
soliciting  risks  was  sufficient ;  but  mere  knowledge  of  such 
other  insurance,  upon  the  part  of  such  agent,  would  not  be 
chargeable  to  the  company.  Schenck  v.  Mercer  County 
Mut.  Ins.  Co.  4  Zabr.  ]Sf.  J.  447.    1854. 

§  49.  Where  policy  was  made  subject  to  limitations 
and  conditions  annexed,  and  it  was  stipulated  therein  that 
a  subsequent  insurance  by  any  other  company  or  person, 
without  consent,  should  avoid  the  policy,  and  at  time  of 
issue  an  endorsement  of  $3,000  insurance  already  made 


430 


OTHEB  INSUBANCE. 


[    : 


was  written  on  tlie  policy :  Heldy  that  a  second  insurance 
afterwards  obtained  without  the  knowledge  or  consent  of 
the  company  avoided  the  policy,  although  it  was  to  take 
the  place  of  the  insurance  existing  at  the  time  of  issue  of 
this  policy,  and  was  for  a  less  amount.  Burt  v.  People's 
Mut.  Ins.  Co.  2  Gray,  Mass.  397.     1854. 

§  50.  Where  policy  stipulated  that  "  a  subsequent 
insurance,  without  notice,  should  avoid  the  policy ;  Heldy 
that  a  second  insurance,  effected  subsequently  by  assured, 
without  notice  to  first  insurers,  avoided  the  first  policy. 
Forbush  v.  Western  Massachusetts  Ins.  Co.  4  Gray,  Mass. 
337.     1855. 

I  51.  Where  a  first  policy  prohibited  any  "  increase 
of  risk,"  and  the  insured  increased  the  risk,  by  erecting  a 
building  connecting  his  house  and  barn ;  Hddy  that  this 
policy  was  void.  And  where,  subsequent  to  such  increase 
of  risk,  and  consequent  avoidance  of  first  policy,  the  as- 
sured took  out  the  policy  in  suit,  which  required  a  dis- 
closure of  all  prior  insurance,  and  failed  to  make  known 
the  existence  of  the  first  policy ;  Held,  that  the  first  policy 
being  at  an  end,  and  of  no  effect,  did  not  avoid  the  second 
policy.  Jackson  v.  Farmers'  Mut.  Fire  Ins.  Co.  5  Gray, 
Mass.  52.     1855. 

§  52.  Assured  took  out  a  policy  for  $3,000  on  his 
mill,  with  the  defendants,  which  policy  provided  "that 
notice  of  any  prior  or  subsequent  insurance  must  be  en- 
dorsed on  the  policy."  At  the  time  of  taking  it  there  was 
already  $2,500  on  the  same  mill  in  the  City  Insurance 
Company  of  Cincinnati,  notice  of  which  was  given  and 
consent  for  endorsed  on  defendant's  policy.  Subsequently, 
the  policy  in  the  City  Insurance  Company  having  expired, 
the  Assured  had  a  new  policy  made  for  $2,000,  in  another 
company,  in  place  of  the  City  Insurance  Company's  policy, 
but  did  not  have  this  change  endorsed  on  the  policy  m 
suit,  although  he  verbally  notified  the  agent  of  the  com- 
pany. Held,  that  the  condition,  requiring  endorsement 
on  policy  of  subsequent  insurance,  was  a  condition  prece- 
dent ;  and  that  verbal  notice  was  not  a  coFJipliance  with  it. 
Hutchinson  v.  Western  Ins.  Co.  21  Mo.  97.     1855. 

§  53.    When  second  policy  issued,  there  was  endorsed 


OTHEB  IN8UBANCE. 


431 


on  the  face  of  it,  as  well  as  in  application,  "  $2,000  on 
same  property  in  the  People's  Mutual."  Held^  that  this 
statement  was  not  a  continuing  warranty,  and  was  satis- 
fied by  the  existence  of  such  an  insurance  at  time  of  issu- 
ing the  second  policy,  though  it  might  afterwards  have 
expired,  been  canceled  or  avoided  by  acts  of  assured. 
Also,  that  the  first  policy  having  been  avoided  by  subse- 
(]^uent  insurance  without  notice,  the  second  policy  was 
liable  for  the  whole  loss,  notwithstanding  its  stipulation 
that,  in  case  of  other  insurance,  they  would  be  liable  only 
for  their  pro  7'ato  proportion.  Forbush  v.  Western  Mass. 
Ins.  Co.  4  Gray,  Mass.  337.     1855. 

§  54.  M.  having  effected  an  insurance  with  a  mutual 
company,  assigned  all  his  interest  in  the  policy  and  prem- 
ises insured  to  the  plaintiffs  by  way  of  mortgage,  to  secure 
a  debt,  and  the  policy  was  duly  ratified  to  them  in  accord- 
ance with  the  act  of  incorporation,  which  provided  "  that 
when  any  house  or  building  shall  be  alienated  by  sale  or 
otherwise,  the  policy  shall  thereupon  be  void,"  <fec.,  "  pro- 
vided always  that  the  grantee  or  alienee  having  the  policy 
assigned  to  him  may  have  the  same  ratified  and  confirmed 
to  him  for  his  own  proper  use  and  benefit,"  &c.,  "  and  by 
such  ratification,  shall  be  entitled  to  all  the  rights  and 
privileges,  and  be  subject  to  all  the  liabilities,  to  which 
the  original  party  insured  was  entitled  and  subjected  un- 
der this  act.  A  loss  having  occurred,  the  plaintiffs  sued 
in  their  own  names, as  assignees,  setting  out  the  mortgage 
in  the  declaration.  Defendants  pleaded — 3d,  that  the 
debt  due  the  plaintiffs  was  less  than  the  sum  insured ; 
that  the  assignment  was  to  secure  the  debt ;  and  that  as 
to  any  surplus,  plaintiffs  held  as  trustees  for  the  mortga- 
gor ;  that  before  the  loss,  M.  insured  in  another  office  for 
£500,*  winch  defendants  had  no  notice  of,  and  never  con- 
sented to  or  approved  of;  4th,  that  before  the  mortgage 
to  the  plaintiffs,  M.  had  mortgaged  the  premises  insured 
to  one  R.  in  fee,  who  afterwards  effected  an  insurance  with 
another  company  on  his  mortgagee  interest,  without  the 
knowledge  and  consent  of  the  defendants ;  lastly,  that  be- 
fore M.'8  mortgage  to  the  plaintiffs,  he  had  mortgaged  the 
premises  insured  to  R.  in  fee,  which  mortgage  is  still  in 
force  and  unsatisfied.    Held^  on  demurrer,  third  and  last 


432 


OTHER  INSUBANOE. 


pleas  good ;  fourth  plea  bad ;  for  although  the  mortgaee 
to  R.  mentioned  in  it  would  form  a  good  defense  of  itself, 
yet  it  was  not  relied  on  for  that  purpose,  but  stated  only 
as  incident  to  another  and  insufficient  defense — viz :  the 
insurance  by  R.  on  his  mortgage — and  therefore  it  could 
not  be  acted  on  as  admitted  by  the  demurrer.  Held  alsOy 
by  Robinson,  C.  J.,  that  the  clause  of  policy  above,  ap- 
plied only  to  absolute  alienations,  and  the  plaintiffs  in 
this  case,  as  mortgagees,  were  not  entitled  to  sue  in  their 
own  names.  But,  per  McLean  and  Burns,  JJ.,  Held^  that 
they  were  so  entitled.  Burton  v.  Gore  Dist.  Mut.  Ins.  Co. 
14  tipper  Canada,  Q.  B.  342.     1856. 

§  55.  M.  effected  an  insurance  on  a  vessel,  "  for  ac- 
count of  owners  as  interest  may  appear,"  for  $11,000,  un- 
der policy  containing  provision  as  to  other  insurances  as 
follows:  "Warranted  not  to  insure  more  than  $11,000, 
and  in  case  of  any  excess  over  $11,000,  then  this  policy  is 
to  be  void."  Subsequently,  two  of  the  owners  (being 
three  in  all)  insured  their  interest  in  the  same  vessel,  to 
the  amount  of  $10,000,  in  other  companies.  Held^  that, 
although  the  subsequent  insurance  was  not  upon  the  en- 
tire interest  insured  imder  the  first  policy,  yet  it  was  a 
violation  of  the  warranties  against  further  insurance  con- 
tained in  such  prior  policy,  and  it  was,  therefore,  void. 
Mussey  v.  Atlas  Mut.  Ins.  Co.  11  N.  Y.  79.    1856. 

§  56.  A  recitation  of  prior  insurance,  in  the  body  of 
the  policy,  is  a  compliance  with  a  condition  requiring  such 
insurance  to  be  noted  on  the  application  or  endorsed  on 
the  policy,  or  otherwise  approved  in  writing  by  the  secre- 
tary. Ames  V.  New  York  Union  Ins.  Co.  14  N.  Y.  253. 
1856. 

§  57.  The  policy  contracted  to  pay  and  satisfy  the 
sum  in  case  of  loss,  "  according  to  the  provisions  of  the 
act  of  incorporation  and  by-laws  of  the  company."  One 
section  of  the  act  made  the  policy  void  in  case  of  double 
insurance  not  assented  to.  There  was  printed  on  the 
back  of  the  policy  a  part  of  the  act,  but  not  the  section 
relating  to  double  insurance.  Heldy  that  the  provisions 
of  the  act  and  of  the  by-laws  were  as  binding  as  if  re- 
cited in  full  in  the  policy;  and  that  the  policy  in  this 


OTHEB  INSUBANOE. 


433 


case,  there  being  other  insurance  not  assented  to,  was 
void.  Fabyan  v.  Union  Mut.  Fire  Ins.  Co.  33  N.  H.  203. 
1856. 

§  58.  Other  insurance,  beyond  the  amount  specified 
as  allowable  in  the  conditions  of  the  policy,  and  without 
the  consent  of  the  insurers,  renders  the  policy  void.  In- 
surance Co.  V.  Stockbower,  26  Penn.  St.  199.     1856. 

^  §  59.  Where  charter  of  an  insurance  company  con- 
tains a  provision  against  double  insurance,  "  without  the 
consent  of  the  directors  endorsed  on  the  policy,"  such 
other  insurance,  taken  without  the  consent  of  the  directors 
endorsed  on  the  policy,  avoids  it.  Blanchard  v.  Atlantic 
Ins.  Co.  33  N.  H.  9.     1856. 

§  60.  A  clause  which  provides  that  the  policy  shall 
become  void,  if  any  other  insurance  be  made,  which,  to- 
gether with  this,  shall  exceed,  <fec.,  relates  only  to  subse- 
quent insurance.  Mussey  v.  Atlas  Mut.  Ins.  Co.  4  Kernan, 
N.  Y.  79.    1856. 

§  61.  The  charter  provided  that  "when  a  subsequent 
insurance  shall  be  made  by  any  other  company  or  by  any 
other  person,  on  property  insured  at  this  office,  without 
the  consent  of  tbe  president,  in  writing,  and  according  to 
the  terms  in  such  consent  expressed,  it  shall  annul  the 
said  policy,"  &c.  The  assured  effected  a  second  insurance, 
and  notified  the  president  and  secretary,  who  verbally 
consented  to  the  same;  Held,  that  the  failure  to  obtain 
the  "written"  consent  of  the  president,  avoided  the 
policy,  unless  his  .verbal  consent  was  a  waiver  of  the  by- 
law  requiring  it ;  but  that  he  was  an  agent,  with  powers 
strictly  limited  and  defined,  and  could  not  act  so  as  to  bind 
the  defendants,  beyond  the  scope  of  his  authority.  Hale 
V.  Mechanics'  Mut.  Fire  Ins.  Co.  6  Gray,  Mass.  169.     1856. 

§  62.  Where  a  policy  contained  a  condition  which 
provided  that  it  should  be  void  if  other  insurance  should 
not  be  endorsed  on  it ;  Held,  that  the  existence  of  prior 
insurance  did  not  make  it  absolutely  void,  but  invalid, 
voidable  and  capable  of  being  confirmed  and  made  valid 
by  acts  of  the  company  showing  a  waiver  of  the  defect. 
Atlantic  Ins.  Co.  v.  Goodall,  35  N.  H.  328.     1857. 


mm 


484 


OTHER  INSURANCE. 


§  63.  In  this  case  the  policy  was  on  "  starch  manu- 
factory, including  fixtures  and  machinery,"  and  assured 
represented  that  he  had  two  thousand  dollars  insurance  on 
the  property  in  Stevenson  County  Mutual  Insurance  Com- 
pany, when  in  fact  the  insurance  in  the  latter  company 
was  upon  "starch  manufactory"  alone.  Held,  that  the 
representation  of  other  insurance  on  the  same  property 
was  not  untrue,  as  "  starch  manufactory "  included  fix- 
tures and  machinery.  Peoria  Fire  &  Maiine  Ins.  Co.  v. 
Lewis,  18  111.  553.     1857. 

§  64.  When  the  facts  are  not  in  dispute,  it  is  the 
province  of  the  court  to  determine,  as  a  question  of  law, 
what  is  reasonable  diligence  in  giving  notice  of  a  subse- 

Suent  insurance  to  the  first  insurers.     Kimball  v.  Howard 
ire  Ina  Co.  8  Gray,  Mass.  33.     1857. 

§  65.  Where  policy  in  stock  company  provided  "  that 
a  subsequent  insurance,  without  notice  and  consent,  should 
avoid  the  policy,"  and  a  subsequent  insurance  of  $4,000 
was  taken  on  the  same  property  by  another  company, 
without  notice  to  or  consent  of  the  first  company ;  Heldf 
that  the  first  policy  was  void.  Kimball  v.  Howard  Fire 
Ins.  Co.  8  Gray,  Mass.  33.    1857. 

§  66.  These  words  in  a  second  policy,  "  Other  insur- 
ances permitted  without  notice  until  required ;  applies  to 
prior,  as  well  as  to  subsequent  insurances,  and  policy  is 
therefore  valid,  notwithstanding  the  existence  of  a  prior 
insurance  at  the  time  of  issue,  not  otherwise  expressed 
than  by  said  words.  Kimball  v.  Howard  Fire  Ins.  Co.  8 
Gray,  Mass.  33.     1857. 

§  67.  This  clause  in  a  policy,  "  If  any  subsequent  in- 
surance should  be  made  upon  the  property  hereby  insured, 
which  with  the  sum  or  sums  already  insured,  should,  in 
the  opinion  of  the  said  Howard  Fire  Insurance  Company, 
amount  to  an  over-insurance,  said  company  reserve  to 
themselves  tlie  right  of  canceling  this  policy  by  paying 
to  the  insured  the  unexpired  premium  pro  rata;''^  has 
no  reference  to  insurance  on  the  property,  procured 
without  notice  to  the  defendants,  and  without  their 
assent.  Kimball  v.  Howard  Fire  Ins.  Co.  8  Gray,  Mass. 
33.     1857. 


OTKEB  INSUBANCB. 


435 


§  68.  When  policy  required  notice  of  any  subsequent 
insurance,  and  an  endorsement  of  it  on  the  policy,  or  a 
written  acknowledgment  thereof  fi*om  the  company; 
Held^  that  evidence  of  a  notice  given  to  the  agent  of  tne 
company,  of  an  "  intention "  to  procure  such  subsequent 
insurance,  would  not  prove  a  compliance  with  the  condi- 
tion, which  required  actual  notice  of  the  subsequent  in- 
surance after  it  was  obtained.  Kimball  v.  Howard  Fire 
Ins.  Co.  8  Gray,  Mass.  33.     1857. 

§  69.*  Where  policy  requires  the  assured  to  give  notice 
of  subsequent  insurance  with  all  "  reasonable  diligence ; " 
a  notice,  given  after  the  destruction  of  the  property  by  fire, 
and  seven  months  subsequently  to  the  date  of  the  second 
policy,  is  not  a  compliance  with  the  condition.  Kimball 
V.  Howard  Fire  Ins.  Co.  8  Gray,  Mass.  33.     1857. 

§  70.  Where  policy  provided  for  notice  of  other  in- 
surance, under  penalty  of  forfeiture  of  the  policy,  if  such 
notice  were  not  given ;  Held^  that  the  stating  of  a  wrong 
company  in  which  such  other  insui'ance  was  procured 
would  not  avoid  the  policy,  if  the  amount  so  stated  was 
correct.  Benjamin  v.  Saratoga  County  Mut.  Fire  Ins.  Co. 
17  N.  Y.  415.     1858. 

§  71.  One  of  the  conditions  of  an  insurance  policy 
was,  that  if  there  should  be  any  insurance  at  any  other 
oiEce,  notice  should  be  given,  and  the  same  endorsed 
on  or  stated  in  the  policy,  otherwise  the  first  insurance 
should  be  void.  Hetd^  that  an  insurance  eflFected  in  an- 
other ofiSce  by  an  interim  receipt,  was  an  insiu'ance  within 
the  condition ;  but  as  there  was  evidence  to  show  that  this 
fact  had  been  notified  to  defendant's  agent,  who  said  it 
was  not  necessary  to  endorse  it  on  the  policy,  until  the 
policy  on  such  receipt  should  be  obtained,  and  as  plaintiff 
coulcl  not  avail  himself  of  this  fact  under  the  pleadings, 
the  court,  instead  of  ordering  a  nonsuit  on  the  ,  leave 
reserved,  granted  a  new  trial  with  leave  to  amend. 
Hatton  V.  Beacon  Ins.  Co.  16  Upper  Canada,  Q.  B.  316. 
1858. 

§  72.  Where  the  policy  prohibited  any  subsequent 
insurance  on  the  same  property,  without  notice  to  and 
consent  of  the  company;  lleld^  that  a  second  insurance 


m 


436 


OTHER  INSURANCE. 


effected  l>y  a  broker,  who  had  also  obtained  the  first  insur- 
ance, without  any  notice  to  the  company  of  such  subse- 
quent insurance,  avoided  the  first  policy;  and  that  the 
mere  knowledge  of  the  broker,  was  not  chargeable  to  the 
company.  MeTlen  v.  Hamilton  Fire  Ins.  Co.  5  Duer,  N.  Y. 
101.     1855.     Affirmed,  17  N.  Y.  609.     1858. 

§  73.  Where  policy  required  that  notice  of  other  in- 
surances should  be  given  with  "  reasonable  diligence,"  and 
twenty  days  before  the  fire  a  second  policy  was  taken  out 
on  the  same  property,  of  which  no  notice  was  given  to  first 
insurers,  until  atter  the  fire ;  Ileld^  that  unexplained  delay 
of  nineteen  days,  was  a  conclusive  proof  of  a  want  of  that 
"  reasonable  diligence  "  which  was  necessary  to  be  shown, 
to  continue  the  policy  in  force.  Mellen  v.  Hamilton  Fire 
Ins.  Co.  5  Duer,  N.  Y.  101.  1855.  Affimed,  17  N.  Y. 
609.     1858. 

§  74.  To  an  action  on  a  policy  of  insurance  on  a 
steamer  against  fire,  defendants  pleaded  in  their  sixth  plea, 
that  by  the  policy  the  plaintiffs  warranted  that  the  total 
amount  of  said  insurance  on  said  steamer  should  not  ex- 
ceed three-fourths  of  her  declared  value,  otherwise  the 
policy  should  be  void,  and  that  the  insurance  on  her  far 
exceeded  three-fouiths  of  said  value.  The  plaintiffs  re- 
plied that  the  warranty  refen-ed  to  was  to  the  efl'ect  that 
the  total  amount  of  insurance  "  against  fire "  should  not 
exceed  three-fouiths  of  the  declared  value,  and  that  such 
insm'ance  did  not  exceed  said  value.  Held,  on  demurrer, 
a  good  replication,  and  that  defendants  might  have  rejoined, 
re-affirmi.ug  the  condition  to  be  as  they  had  alleged,  and 
denying  that  it  was  such  as  plaintiffs  asserted.  The 
seventh  plea  set  up  as  a  defense  other  insurances  ^^'ith- 
out'notice  to  the  defendants  or  having  the  same  endorsed 
on  their  policy,  and  the  plaintiffs  replied  that  they  gave 
due  notice  of  such  insurances  to  defendants,  who  negloct.''d 
to  endorse  the  same.  Held,  that  the  replication  v  is  bad. 
Noad  V.  Provincial  Ins.  Co.  18  Upper  Can^'^  B.  584. 

1859. 

§  75.  The  third  plea  alleged  that  the  ^-laintifT  had 
effected  another  insurance  in  the  Anchor  Conii/an  ,  with- 
out notice  to  defendants  or  endorsement  on  their  policy. 


OTHER   INSURANCE. 


437 


The  evidence  showed  that  this  policy  was  eflfected  by  one 
S.  (whose  interest  in  the  property  did  not  appear)  in  his 
own  name,  and  assigned  by  him  to  B.,  who  was  also  the 
assignee  of  policies  issued  to  plaintiff.  Held^  that  the 
plea  was  not  proved,  for  the  insurance  complained  of  was 
not  shown  to  be  by  or  for  the  plaintiff,  or  of  his  interest, 
which  would  be  necessary  to  avoid  the  plaintiff's  policy. 
Park  V.  Phcenix  Ins.  Co.  19  Upper  Canada,  Q.  B.  110. 
1859. 

§  76.  The  taking  of  a  policy  of  insurance,  in  re- 
newal of  a  prior  insui'ance,  mentioned  in  the  applica- 
tion for  a  subsequent  policy,  is  not  within  the  tenns  or 
spirit  of  a  provision,  in  the  subsequent  policy,  requiring 
notice  in  case  of  making  other  insurances.  Brown  v. 
Cattaraugus  County  Mut.  Ins.  Co.  18  N.  Y.  385.      1858. 

§  77.  A  policy  of  insurance  provided,  "that  in  case 
of  subsequent  insurance  of  the  same  property,  notice  there- 
of should,  with  all  reasonable  diligence,  be  given  to  the 
company,  «fec.,  in  default  whereof  the  policy  should  be 
void."  The  assured  made  application  to  the  surveyor  of 
another  company  for  an  insurance  of  $4,000,  ten  days  be- 
fore the  fire,  and  paid  the  premium  for  the  same,  but  re- 
ceived no  policy,  as  the  agent  was  not  authorized  to  issue  ' 
policies,  but  only  to  receive  and  forward  applications  to 
his  company,  which  reserved  the  right  of  accepting  or  re- 
jecting risks  thus  se"nt.  At  time  of  fire,  the  policy  in 
second  company  had  been  made  out  and  returned  to  sur- 
veyor, but  had  not  been  delivered  to  assured,  or  notice  of 
its  issue  given  to  him,  though  the  policy  was  afterwards 
delivered,  and  $3,000  of  the  amount  insured  j^aid.  The 
lower  judge  instructed  the  jury,  that  if  there  was  no  want 
of  reasonable  diligence  in  giving  notice,  the  assured  was 
not  in  default.  HeUl^  that  this  instruction  was  erroneous, 
there  being  no  evidence  that  notice  was  ever  in  fact  given, 
either  before  or  after  the  fire.  Inland  Ins.  h  Deposit  Co. 
v.  Stauffer,  33  Penn.  St.  397.     1859. 

§  78.  To  a  declaration  against  a  mutual  insurance 
company  on  a  policy  of  insurance  against  fire,  defendants 
pleaded :  1st,  that  before  the  granting  of  the  policy  sued 


438 


OTHER  INSXJEANOE. 


on,  the  plaintiff  bad  insured  with  another  company,  to 
which  the  defendants  never  consented,  nor  was  such  con- 
sent endorsed  on  their  policy.  2d,  that  after  the  defend- 
ants' policy  was  granted,  the  plaintiff  eflfected  an  insurance 
with  another  company,  without  defendants'  consent,  and 
without  having  such  consent  endorsed  on  their  policy. 
The  plaintiff  replied,  on  equitable  grounds,  to  the  first 
plea,  that  the  insurance  had  been  effected  with  the  A. 
company,  which  had  failed,  and  the  plaintiff  notified  the 
defendants  thereof,  and  that  said  policy  would  not  be  re- 
newed, to  which  defendants  made  no  objection,  but  after- 
wards granted  the  policy  sued  on,  and  received  from  the 
plaintiff  the  assessments  on  his  premium  note.  And  to 
the  second  plea,  that  the  plaintiff  notified  defendants' 
agent  of  the  insurance  there  mentioned,  so  that  he  might 
endorse  defendants'  consent  thereto  on  their  policy,  or 
notify  the  plaintiff  if  the  defendants  refused  to  do  so,  but 
that  they  did  neither,  and  afterwards  made  the  plaintiff 
pay  assessments  on  his  note.  Held,  on  demurrer,  replica- 
tion bad,  for  under  the  act  of  incorporation  the  policy  was 
avoided  by  the  acts  pleaded,  and  the  condition  could  not 
be  waived  by  defendants'  conduct.  Me.ritt  v.  Niagara 
Mut.  Fire  Ins.  Co.  18  Upper  Cauada,  Q.  B.  529.     1859. 

§  79.  Where  the  policy  on  its  face  contained  the  stip- 
ulation, that  "  $25,000  is  insured  on  the  same  property 
elsewhere,"  and  it  appeared  at  the  trial  that  the  amount 
insured  was  much  less  than  this  sum,  but  no  such  ground 
of  defense  was  distinctly  stated  in  the  answer,  nor  sug- 
gested at  the  trial ;  Held,  that  it  could  not  be  taken  ad- 
vantage of  at  the  argUu.  nt  before  a  full  court  upon  the 
report  of  the  presiding  judge.  Denny  v.  Conway  Stock  & 
Mut.  Ins.  Co.  13  Gray,  Mass.  492.     1859. 

§  80.  A  provision  in  a  policy  of  a  mutual  insurance 
company,  that  "  persons  insuring  with  this  company  may 
insure  with  other  companies,  with  the  consent  of  the  di- 
rectors endorsed  on  the  policy,"  adopted  by  a  board  of 
directors  acting  under  general  power  to  control  the  busi- 
ness of  the  company,  and  printed  on  the  back  of  all  poli- 
cies issued,  is  a  valid  condition,  prohibitory  in  its  char- 
acter, and  that  a  further  insurance,  therefore,  without 


OTHEB  nrSITBANCB, 


439 


notice  to  and  consent  of  the  directors,  avoids  the  policy. 
Hygum  V.  ^tna  Ins.  Co.  11  Iowa,  21.    1860. 

§  81.  To  an  action  on  a  policy  of  insurance,  defend- 
ants pleaded  an  insurance  by  the  assured  with  another 
company,  without  notice  to  defendants,  or  endorsement 
thereof  on  their  policy,  contrary  to  one  of  the  conditions. 
The  assured  replied,  on  equitable  grounds,  that  he  effected 
the  insurance  through  N.,  their  agent,  residing  at  Elora ; 
that  when  he  effected  the  second  insurance  complained  of, 
he  had  not  received  the  policy  from  defendants,  and  had 
no  notice  or  knowledge  of  said  condition ;  that  as  soon  as 
he  became  aware  of  it  he  gave  notice  to  said  N.  that  he 
had  effected  the  insurance  mentioned  in  the  plea,  and 
another  insurance  with  the  British  Assurance  Company, 
and  as  the  insurance  mentioned  in  the  plf "  had  been  can- 
celed at  the  time  of  giving  such  notice,  tha  said  N.  prom- 
ised to  have  the  insurance  with  the  British  Assurance 
Company  endorsed  on  defendants'  policy,  and  told  the 
assured  that  it  was  not  necessary  to  have  the  other  noted, 
and  that  defendants'  policy  would  still  bind  them ;  that 
after  said  notice  defendants  made  a  memorandum  on  their 
policy  of  the  insurance  with  the  British  Assurance  Com- 
pany, and  returned  said  policy  to  the  assured  as  valid  and 
subsisting ;  and  defendants  gave  no  notice  to  the  assured 
that  they  considered  said  policy  canceled,  because  the 
omission  to  note  the  insurance  in  the  plea  mentioned 
arose  from  the  neglect  of  the  defendants  and  not  of  the 
assured ;  that  at  the  time  of  the  loss  the  assured  had  no 
other  insurance  except  that  with  the  British  Assurance 
Company,  and  by  reason  of  tie  premises  defendants 
waived  the  endorsement  of  the  insurance  mentioned  in  the 
plea.  It  appeared  that  the  policy  was  made  at  the  head 
office  in  Montreal,  on  the  6th  of  June,  and  sent  to  N.,  the 
agent,  about  ten  days  before  the  fire,  which  took  p^ace  on 
the  7th  of  July,  but  it  remained  with  him,  not  being 
called  for  by  the  assured.  On  the  16th  of  June  the  as- 
sured obtained  the  policy  pleaded,  but  it  was  canceled  on 
the  30th  of  June.  N.  was  agent  also  for  the  British 
Assurance  Company,  and  granted  to  assured  a  policy  with 
that  company  about  the  same  time  as  the  defendants. 
On  the  4th  of  July  both  of  those  policies  were  sent  to  the 


440 


OTHER  INSURANCE. 


ii! 


I 


respective  head  offices  to  have  each  marked  on  the  other, 
and  defendants'  consent  was  noted*  on  the  9th  of  July, 
and  the  policy  returned.  The  agent  knew  of  the  policy 
pleaded,  before  the  fire,  but  not  until  after  it  had  been 
canceled.  Held^  first,  that  the  replication  was  not  proved, 
for  the  omission  to  note  the  policy  was  not  owing  to  the 
negligence  of  the  defendants ;  they  were  not  aware  of  it 
while  it  existed,  and  it  would  have  been  useless  to  note 
it  after  it  had  ceased ;  second,  that  the  agent  could  not 
have  waived  the  forfeiture;  and  third,  that  the  replica- 
tion should  not  have  been  admitted,  and  might  be  struck 
out  under  the  C.  L.  P.  A.,  Sec.  290.  Jacobs  v.  Equitable 
Ins.  Co.  17  Upper  Canada,  Q.  B.  35.  1859.  See  same 
case  affirmed,  on  new  trial,  18  Upper  Canada,  Q.  B.  14. 
1859. 

§  82.  A.  took  out  policy  on  a  saw-mill  with  de- 
fendant, one  condition  of  whose  policy  provided,  "  that  a 
subsequent  insurance  without  notice  to  them  or  endorse- 
ment on  policy  in  writing  should  avoid  the  policy."  Sub- 
sequently, and  without  notice  to  defendant,  A.  effected  a 
further  insurance  in  the  Globe  Insurance  Company,  whose 
policy  also  provided  for  a  notice  of  any  prior  msurance  on 
the  same  pi'oi»erty ;  and  A.  failed  to  make  known  to  Globe 
Insurance  Company  the  insurance  already  made  by  de- 
fendant. A.  held  the  policy  of  the  Globe  Insurance  Com- 
pany until  after  the  fire,  and  brought  suit  upon  it,  which 
suit  was  settled  by  A.^s  .ccepting  the  notes  of  the  officers 
of  the  insurance  company,  which  he  still  had  in  his 
possession  at  the  time  of  this  trial.  Held^  that  as  the 
insurance  in  the  Globe  Company  was  neither  void  nor 
voidable  on  its  face,  but  merely  voidable  by  the  under- 
writel's  upon  due  proof  of  the  facts,  A.  was  bound  to 
give  notice  thereof  to  the  defendant,  and  having  failed  so 
to  do,  the  policy  was  void.  Bigler  v.  New  York  Central 
Ins.  Co.  20  Barb.  N.  Y.  635.  1855.  Affirmed,  22  N.  Y. 
402.     18G0. 

§  83.  Where  prior  insurance  was  notified  to  the  com- 
pany at  the  time  the  policy  issued,  the  want  of  endorse- 
ment of  such  j)rior  insurance  on  the  policy,  as  required  by 
a  condition  of  the  policy,  cannot  l^e  ureed  in  a  court  of 
equity,  in  a  cause  otliei  wise  free  from  objection,  whatever 


OTHEB  INSUBANOE. 


441 


effect  it  may  have  at  law.    National  Fire  Ins.  Co.  v.  Crane, 
16  Md.  260.     1860.    ' 

§  84.  Assured  made  application  to  defendant  for  in- , 
Burance  on  his  property,  but  not  hearing  from  it,  and 
supposing  that  they  had  overlooked  it,  effected  an  insurance 
in  the  Faimers'  Mutual  Insurance  Company,  but  subse- 
quently receiving  the  policy  from  defendant,  which  was 
prior  in  date  to  that  of  the  Farmers'  Mutual  Company, 
and  preferring  to  have  his  insurance  in  defendant's  com- 
pany 10  went  twice  to  surrender  the  policy  in  the  Farmers' 
Mut : !  ,  and  fully  intended  to  give  it  up,  but  had  not  done 
so  at  time  of  the  fire,  nor  had  he  said  anything  of  his  in- 
tention to  agent  of  defendant.  Held,  that  the  policy  of 
defendant,  issued  upon  assured's  own  application,  could 
not  be  affected  by  any  mere  intention  or  secret  determina- 
tion of  his  own  mind,  not  communicated  to  others.  Both 
policies  contained  a  provison  also  against  other  insurance 
with\)ut  notice  or  consent  of  the  companies.  Held,  that 
the  second  policy  was  inoperative  and  invalid,  because  of 
the  failure  of  assured  to  notify  them  of  the  first  insurance, 
and  it  did  not  therefore  avoid  the  first  policy.  Gale  v. 
Belknap  Ins.  Co.  41  N.  H.  170.    1860. 

§  85.  •  Policy  provided  that,  "  if  the  assured  or  his  as- 
signs shall  hereafter  make  any  other  insurance  on  the 
same  property,  and  shall  not  with  all  reasonable  diligence 
give  notice  thereof  t^o  this  company,  and  have  the  same  en- 
dorsed on  this  instrument,  or  otherwise  acknowledged  by 
them  in  writing,  then  this  policy  shall  cease  and  be  of  no 
further  effect."  Subsequent  to  the  taking  of  this  policy 
the  agents  of  the  plaintiff*  procured  an  insurance  on  the 
same  property  *i  the  Liverpool  and  London  Insurance 
Company,  of  which  no  notice  was  given  to  or  consent  of 
defendants  obtained,  nor  was  notice  given  to  the  Liverpool 
and  London  Insurance  Company,  as  required  by  a  condi- 
tion of  its  policy,  of  the  prior  insurances  in  defendants' 
company.  Plaintiff  claimed  that  the  Liverpool  and  Lon- 
don policy  was  void,  by  the  terms  of  its  condition  requiring 
notice  of  prior  insurance,  and  that  it  did  not,  therefore, 
avoid  defendants'  policy ;  and  further,  that  such  insurance 
in  the  London  and  Liverpool  office,  was  made  without  his 
knowledge ;   but  the  court  Held^   that  there  had  been  a 


I 


442 


OTHEB  INSUEANCE. 


violation  of  the  condition  in  defendants'  policy,  whether 
such  policy  in  Liverpool  and  London  were  valid  or  invalid, 
or  whether  plaintiff  knew  of  such  other  insurance  or  not. 
Campbell  v.  ^tna  Ins.  Co.  Decided  in  Sup.  Ct.  Halifax, 
Nova  Scotia,  May  31,  1860. 

§  86.  This  case  already  reported,  ante^  §  81,  coming 
up  again,  and  the  jury  having  a  second  time  found  for 
the  plaintiff,  a  new  trial  was  granted  without  costs.  The 
only  plea  was  a  further  insurance  effected  by  the  plaintiff, 
without  notice  to  defendants  or  endorsement  on  their 
policy,  on  which  issue  was  taken,  and  at  the  trial,  de- 
fendants admitted,  that  if  they  should  fail  to  prove  their 
defense  the  plaintiff  would  be  entitled  to  a  verdict  for 
the  full  amount  insured.  Held,  that  defendants  were  en- 
titled to  begin.  The  further  insurance  having  subsisted 
for  fourteen  days  only  before  it  was  canceled,  it  was 
argued  that  a  reasonaole  time  must  be  allowed  to  give 
notice  of  it  to  defendants,  and  procure  the  endorsement, 
and  that  this  was  a  question  for  the  jury ;  but,  ffeld,  that 
the  question  was  not  properly  presented  by  the  pleadings, 
and  that  the  plaintiff  having  given  no  notice  at  all, 
though  he  had  ample  time  to  do  it,  the  question  of  reason- 
able time  could  not  arise.  It  was  contended  also  that  the 
second  insurance  was  void,  by  reason  of  plaintiff's  failing 
to  notify  them  of  his  first  insurances,  but  held  that  it 
was  nevertheless  an  insurance  within  the  meaning  of  the 
condition  in  defendant's  policy.  Jacobs  v.  Equitable 
Ins.  Co.  19  Upper  Canada,  Q.  B.  250.  1860.  Same  case 
finally  disposed  of  as  above  in  19  Upper  Canada,  Q.  B. 
257.     1860. 

§  87.  The  by-laws  provided  that  "if  a  previous 
policy  exists,  and  is  not  disclosed,  the  policy  in  this  com- 
pany will  be  void."  Ifeldf  that  a  previous  insurance 
effected  by  a  third  party  (who  had  an  interest  in  the 
property),  in  the  name  of  the  assured,  but  without  their 
knowledge  or  consent,  was  not  in  violation  of  the  above 
provision.  Nichols  v.  Fayette  Mut.  Fire  Ins.  Co.  1  Allen, 
Mass.  63.     1861. 

§  88.  Policy  with  defendants  was  issued  December 
27tb,  1852,  for  $10,000,  apportioned  as  follows:   $5,000 


OTHER  mSUBANCE. 


443 


on  building,  $2,000  on  stock,  and  $3,000  on  machinery. 
One  condition  of  the  policy  was  as  follows :  "  All  persons 
having  property  insured  by  this  company,  must,  with  rea- 
sonable diligence,  give  notice  of  all  additional  insurances 
made  in  their  behalf  on  the  same,  whether  by  this  com- 
pany or  by  other  insurers ;  and  of  all  changes  that  may 
be  made  m  such  additional  insurances ;  and  cause  such 
notice  to  be  endorsed  on  their  policies ;  and  each  company 
shall  be  liable  to  the  payment  only  of  a  ratable  portion  of 
any  loss  or  damage  which  may  be  sustained ;  and  unless 
such  notice  is  given,  the  insured  will  not  be  entitled  to 
recover  in  case  of  loss."    In  compliance  with  above  condi- 
tion, assured  gave  notice  on  I4th  December,  1853,  of  an 
additional  insurance  in  the  "Royal  Insurance  Company," 
divided  as  follows :  on  buildings,  $1,000 ;  on  stock,  $2,000 ; 
on  machinery,  $7,000.    These  policies  expired — the  de- 
fants'  on  the  27th  December,  1853 ;  that  of  the  Royal 
Insurance  Company  on  the  2d  December,  1854.     On  the 
6th  January,  1857,  the  defendants  renewed  their  policy, 
by  endorsement  on  the  original  policy,  to  the  amount  of 
$5,000,  as  follows:   on  building,  $500;    on  machinery, 
$3,500;  on  stock,  $1,000;  and  on  5th  January,  1858,  re- 
newed it  again  for  same  amount  and  with  same  distribu- 
tion.    During  the  existence  of  these  two  renewal  policies 
no  notice  was  givtti  by  assured  of  an  insurance  of  $iO,(500, 
which  had  been  eflfected  in  the  "  Royal "  in  December, 
1856.     It  was  not, discovered  till  after  the  fire  of  19th  of 
August,  1858,  when  it  appeared  that  there  was  an  insur- 
ance in  the  "  Royal,"  not  as  it  existed  under  the  former 
policy  of  same  company  in  1853,  but  with  the  amounts 
on  stock,  building  and  machinery  differently  apportioned ; 
Held,  that  the  failure  of  assured  to  give  notice  of  the 
changes  in  the  amounts  insured  on  the  several  subjects,  in 
the  Royal  Insurance  Company,  was  in  violation  of  above 
condition  in  defendants'  policy,  and  a  bar  to  any^recovery 
in  an  action  on  the  policy ;  and  that  a  waiver  of  the  per- 
formance of  the  condition  relative  to  notice  of  "  changes 
made  in  additional  insurances,"  could  not  be  inferred  from 
the  receipt  of  information  of  the  mere  fact  of  an  addi- 
tional insurance,  where  there  was  no  intimation  whatever 
given  of  any  change.     Simpson  v.  Pennsylvania  Fire  Ins. 
Co.  38  Penn.  St.  250.     1861. 


444 


OTHER  INSURANCE. 


I 


§  89.  Where  policy  required  notice  to  be  given  on  all 
prior  insurance,  and  endorsement  of  the  same  on  the  pol- 
icy, and  assured,  at  the  time  of  the  insurance,  gave  writ- 
ten notice  of  a  prior  existing  insurance,  which  the  com- 
pany failed  to  endorse  on  the  policy  issued ;  Held^  that 
the  company  was  estopped  from  setting  up  such  prior 
insurance,  as  a  defense  to  an  actiDn  on  the  policy.  Foots 
V.  North  "Western  Ins.  Co.  New  York  Supreme  Court, 
General  Term,  1862.  "  Commercial  and  Insurance  Jour- 
nal," Pha. 

§  90.  Action  on  policy.  Defense,  other  insurance, 
not  notified  to  insurer,  as  required  by  the  conditions  of  the 
policy  sued  on.  Reply,  that  such  other  insurance  was 
void  for  non-compliance  with  certain  conditions.  Held, 
that  when  the  policy  for  such  other  insurance  was  appa- 
rently valid  on  the  face,  and  could  only  be  shown  to  be 
void  by  pleading  matters  in  avoidance,  it  was  to  be 
deemed  only  voidable ;  that  the  privilege  of  pleading  such 
matters  in  avoidance  appertained  solely  to  the  company 
which  issued  the  policy ;  that  the  plaintiff  in  this  action 
was  not  entitled  to  set  up  such  matters.  David  v.  Hart- 
ford Fire  Ins.  Co.  13  Iowa,  69.     1862. 

§  91.  To  constitute  a  case  of  double  insurance,  the 
risks  must  be  on  the  same  property,  and  the  liability  in 
each  case  must  be  the  same.  An  insured  may  take  poli- 
cies upon  different  parts  of  the  same  building,  or  of  the 
merchandise  within  the  building,  or  upon  different  inter- 
ests in  both,  without  effecting  a  double  insurance.  Roots 
V.  Cincinnati  Ins.  Co.  1  Disn,  Ohio,  138.     1856. 

§  92.  A  policy  of  insurance  upon  a  "  carpenter's  shop 
and  carpenter's  tools "  provided  that  the  issuing  of  any 
other  policy  covering  any  portion  of  the  property  insured, 
and  not  disclosed,  should  avoid  the  policy.  Held,  that 
evidence  of  the  issuing  of  another  policy  to  the  same  per- 
son upon  "  four  chests  of  carpenter  s  tools  in  wood  shop," 
described  as  situated  in  the  same  street  as  in  the  first 
policy,  and  that  there  were  in  the  shop  two  chests  of  tools 
belonging  to  the  assured,  and  two  and  perhaps  three  be- 
longing to  their  journeymen,  did  not  show  that  any  part 
of  the  property  was  covered  by  both  policies.  Clark  v. 
Hamilton  Mut.  Ins.  Co.  9  Gray,  Mass,  148.     1857. 


OTHEB  INSURANCE. 


445 


§  93.  A  clause  in  a  policy  permitting  other  insurance 
without  notice  until  required,  applies  to  insurance  already 
existing  on  the  property,  notwithstanding  that  the  policy 
provides  that  "  in  case  the  assured  shall  have  already  any 
other  insurance  against  loss  by  fire  on  the  property  hereby 
insured,  not  notified  to  this  company  and  mentioned  in  or 
endorsed  upon  this  policy,"  the  policy  shall  be  void  and  of 
no  eft'ect.  Blake  v.  Exchange  Mut.  Ins.  Co.  12  Gray,  Mass. 
265.     1858. 

§  94.  The  words  "  privilege  for  $4,500  additional  in- 
surance," written  in  the  body  of  a  policy  of  insurance, 
will  operate  as  a  waiver  within  that  amount,  of  a  sub- 
sequent printed  condition'the  policy  requiring  notice  to 
be  given  to  the  insurers  of  any  other  insurance,  and  to 
have  the  same  endorsed  on  the  policy.  The  true  intent 
and  meaning  is  that  the  insured  may  obtain  further  insur- 
ance without  notice  to  the  company,  and  wit|?out  affect- 
ing theii*  policy  or  their  liability  upon  it,  provided  such 
additional  insurance  does  not  exceed  $4,500.  Benedict  v. 
Ocean  Ins.  Co.  1  Daly,  N.  Y.  8.     1860. 

§  95.  A  stipulation  in  a  policy  of  insurance,  that  the 
insurance  shall  be  void,  in  case  the  assured,  or  any  other 
person  with  his  knowledge,  shall  have  existing,  during 
the  continuance  of  the  policy,  any  other  insurance  on  the 
property,  not  notified  to  the  insurers  and  mentioned  in,  or 
indorsed  upon,  the  policy,  is  a  material  part  of  the  con- 
tract between  the  parties.  Gilbert  v.  Phoenix  Ins.  Co.  36 
Barb.  N.  Y.  372.    1862. 

§  96.  A  policy  of  insurance  which  contains  a  provis- 
ion that  if  the  assured  "  shall  hereafter  make  any  other  in- 
surance on  the  property  insured,  and  shall  not  obtain  the 
consent  of  this  company  thereto,  or  have  such  consent  in- 
dorsed upon  this  policy,  then  this  insurance  shall  be  void 
and  of  no  effect,"  is  not  defeated  by  the  taking  of  /a  subse- 
quent policy  upon  the  same  and  other  property,  which  is 
invalid  by  reason  of  a  failure  to  disclose  certain  essential 
facts,  although  such  consent  is  not  so  endorsed  upon  it,  or 
obtained  of  the  company.  And  the  assured  may  set  up 
the  invalidity  of  the  second  policy,  although  after  the  loss 
they  had  the  defendants'  consent  thereto  endorsed  upon 


446 


OTHEB  INSUBAirCE. 


another  similar  policy  issued  by  them,  upon  the  other 
property,  which  that  policy  covered,  and  although  they 
had  received  the  full  amount  of  the  invalid  policy  from 
the  insurers.  Hardy  v.  Union  Mut.  Fire  Ins.  Co.  4  Allen, 
Mass.  217.     1862. 

§  97.  Though  by  the  policy  the  assured  were  required 
to  give  notice  of  all  additional  insurances  made  in  their 
behalf,  an  omission  to  give  notice  of  an  additional  insur- 
ance not  on  the  same  property,  will  not  prevent  a  recov- 
ery. Franklin  Fire  Ins.  Co.  v.  Updegraff,  43  Penn.  St. 
350.     1862. 

§  98.  A  condition  (made  a«part  of  the  contract)  that 
notices  of  all  previous  insurances  upon  the  property  shall 
be  given  to  the  insurers  and  endorsed  upon  the  policy,  or 
otherwise  acknowledged  in  writing,  at  or  before  the  time 
of  making  the  insurance,  otherwise  the  policy  shall  be 
void ;  and  a  similar  condition  in  reference  to  subsequent 
insurances ;  together  with  a  stipulation  in  the  body  of  the 
policy  that  the  insurance  shall  be  void  in  case  the  insured 
shall  have  any  other  insurance  on  the  property,  during  the 
continuance  of  the  policy,  not  notified  to  the  insurers,  and 
mentioned  in,  or  endorsed  upon,  the  policy,  constitute  a 
valid  agreement ;  and  the  failure  of  the  insured  to  have 
other  insurances  eflfected  by  him,  mentioned  in  or  endorsed 
upon  the  policy,  or  acknowledged  in  writing,  will  render 
the  policy  void.  Gilbert  v.  Phoenix  Ins.  Co.  36  Barb.  N. 
Y.  372.     1862. 

§  99.  Where  a  policy  was  issued  upon  the  condition 
that  it  should  become  void  if  additional  insurance  was  ob- 
tained without  notice ;  Heldy  that  a  policy  which  upon  its 
face  was  valid,  and  the  amount  of  which  had  upon  a  loss 
happening  been  paid,  constituted  such  additional  msurance; 
although  it  might  have  been  avoided  by  the  company 
granting  it  by  means  of  extrinsic  evidence.  David  v.  Hart- 
ford Ins.  Co.  13  Iowa,  69.     1862. 

§  100.  A  policy  issued  for  $5,000  upon  merchandise 
held  on  trust  and  commission,  provided  that  in  case  of 
plurality  of  insurance  the  company  should  be  liable  for 
Buch  proportion  of  the  loss  to  the  subject  insured  as  the 


OTHEB  INSUBAlSrCE. 


447 


amount  insured  "by  the  company  should  bear  to  the  whole 
amount  insured  thereon.  The  insured  also  held  another 
policy  for  $4,000  on  merchandise  held  on  trust  and  com- 
mission, and  on  storage.  A  loss  happened  to  the  amount 
of  $9,157,  of  which  $7,470  was  merchandise  held  on  com* 
mission,  and  $1,687  held  on  storage.  Held^  that  the  in- 
sured was  entitled  to  recover  the  whole  amount  of  the 
$5,000  policy.  Angelrodt  v.  Delaware  Mut.  Ins.  Co.  31 
Mo.  593.     1868. 

§  101.  L.  was  insured  in  a  Baltimore  company  on  his 
own  goods,  and  in  sundry  foreign  companies  on  his  own 
goods  and  goods  held  on  commission.  The  policy  in  the 
first  company  contained  a  clause  that  "  the  insured  shall 
not  in  case  of  loss  or  damage  be  entitled  to  demand  or 
recover  on  this  policy  any  greater  proportion  of  the  loss 
sustained  than  the  amount  hereby  insured  shall  bear  to 
the  whole  amount  of  the  several  insurances."  The  whole 
insurances  were  insuflScient  to  cover  the  value  of  the 
goods  lost.  The  Baltimore  company  refused  to  pay  more 
than  the  proportion  of  the  losses  as  stated  in  the  above 
clause.  Heldy  that  tlie  foreign  policies  were  not  within  the 
effect  of  the  covenant  relating  to  other  insurances,  and 
that  the  Baltimore  company  was  not  entitled  to  any 
abatement  of  its  liability  on  its  policy  by  reason  of  such 
other  insurance.  Baltimore  Fire  Ins.  Co.  v.  Loney,  20  Md. 
20.     1862. 

§  102.  On  the  .first  of  May,  1852,  the  defendant  in- 
sured the  plaintiff's  stock  in  trade  in  a  store  for  $2,500 
for  three  years.  A  clause  of  the  policy  provided  that 
"  in  case  any  other  policy  of  insurance  had  been  or  shall 
be  issued,  covering  the  whole  or  any  portion  of  the  prop- 
erty insured  by  this  company,"  the  policy  issued  by  the 
defendant  should  be  void,  unless  the  company  had  notice 
thereof,  and  gave  a  written  consent  thereto.  In  August, 
1854,  the  goods  were,  with  the  consent  of  the  defendant, 
removed  to  an  adjoining  store,  in  the  same  building,  known 
as  No.  148.  At  that  time  the  insured  had  a  stock  of 
goods  of  the  same  description  in  No.  148,  which  had  been 
insured  for  $2,500  by  another  company,  January  12, 1852, 
for  five  years.  The  defendants  gave  no  consent  to  such 
prior  insurance,  and  had  no  knowledge  of  it.    Held^  not 


■\ 


448 


OTHER   INSUEANOE. 


^ 


a  case  of  double  insurance,  in  violation  of  the  condition  of 
the  policy.  Vose  v.  Hamilton  Mut.  Ins.  Co.  39  Barb.  N.  Y. 
302.     1862.    . 

§  103.  The  negotiation  of  a  void  policy  is  not  a 
breach  of  the  condition  against  further  insurance  without 
notice,  so  as  to  avoid  a  previously  subsisting  policy.  Ris- 
ing Sun  Ins.  Co.  v.  Slaughter,  20  Ind.  520.     1863. 

§  104.  Where  a  mortgage  interest  was  intended  to  be 
insured,  but  the  policy  was  issued  to  the  mortgagor,  loss 
if  any  payable  to  the  mortgagee,  and  a  condition  of  the 
policy  provided  that  it  should  become  void  if  any  further 
insurance  was  obtained  on  the  property  insured,  without 
the  consent  of  the  insurance  company  endorsed  on  the 
policy,  and  the  mortgagor  procured  a  later  insurance  of 
the  property  of  which  no  notice  was  given  to  the  company, 
and  of  which  the  party  originally  insured  had  no  knowl- 
edge; Held,  that  as  the  original  insurance  was  intended 
as  an  insurance  of  the  mortgage  interest  of  the  insured, 
and  was  to  be  regarded  as  equitably  such,  the  later  insur- 
ance was  not  a  further  insurance  of  the  same  property,  and 
not  a  breach  of  the  condition.  Woodbury  Savings  Bank 
V.  Charter  Oak  Ins.  Co.  31  Conn.  518.     1863. 

§  105.  The  policy  sued  on  contained  a  clause  provid- 
ing that  if  the  insured  should  procure  any  other  insurance, 
and  should  not  with  all  reasonable  diligence  give  notice  to 
the  company,  and  have  the  same  endorsed  on  the  policy, 
or  otherwise  acknowledged  in  writing,  that  the  policy 
should  cease  and  be  of  no  further  ett'ect.  The  application 
upon  which  the  policy  was  issued  was  for  insurance  to  the 
amount  of  $10,000.  The  agent  of  the  defendant  stated  to 
the  plaintiff,  that  by  its  rules  the  company  could  take  but 
$5,000  on  any  one  risk,  and  offered  to  procure  the  insur- 
ance for  the  remaining  $5,000,  which  he  did  the  next  day, 
and  notified  the  defendant,  who  did  not  object.  The 
premium  was  subsequently  paid,  and  the  policy  delivered. 
Held,  that  it  was  the  duty  of  the  company,  upon  being 
notified  by  its  own  agent  of  the  additional  insurance,  to 
endorse  the  same  upon  the  plaintiff's  policy,  or  to  notify 
him  of  the  refusal  of  the  risk,  and  that,  having  failed  so 
to  do,  it  was  estopped  from  setting  up  as  a  defense  the 


OTIIEL,    INSURANCE. 


449 


failure  to  Lave  such  additional  insurance  endorsed  upon 
the  policy.  Horwitz  v.  Equitable  Mut.  Ins.  Co.  40  Mo. 
557.     1867. 

§  106.  Stipulations  in  a  policy  that  it  should  be  void 
in  case  of  any  other  insurance  not  mentioned  or  endorsed 
on  it,  or  in  case  of  any  subsequent  insurance  without 
notice  to  the  insurer  ami  endorsed  upon  the  policy,  or  the 
notice  acknowledged  in  writing,  must  be  strictly  observed. 
If  violated  by  the  insured,  he  cannot  recover  on  the  policy 
in  case  of  loss.  Deitz  v.  Mound  City  Mut.  Fire  <fe  Life 
Ins.  Co.  38  Mo.  85.     1866. 

§  107.  Where  the  assured  makes  two  or  more  insur- 
ances on  the  same  subject,  risk,  and  interest,  it  is  a  case  of 
double  insurance.  Sloat  v.  Royal  Ins.  Co.  49  Penn.  St.  14. 
1865. 

§  108.  Where  one  policy  of  insurance  in  one  company 
covers  the  building  only  of  the  party  insured,  and  a  sub- 
sequent policy  in  another  company  covers  the  building, 
machinery,  shafting,  belting,  tools,  lathe,  planes,  drills, 
and  stock,  finished  and  unfinished,  it  is  not  a  case  of  double 
insurance,  and  is  not  within  the  meaning  of  a  clause  in  the 
former  policy  prohibiting  double  insurances  without  no- 
tice to  the  insurer.  Sloat  v.  Royal  Ins.  Co.  49  Penn.  St.' 
14.     1865. 

§  109.  Where  policies,  which  are  alleged  to  create  an 
over-insurance,  are  void  at  the  time  of  the  loss,  they  are  no 
obstacle  to  a  recovery  on  the  policy  on  which  the  claim  is 
made ;  but  if  voidable  only  for  some  breach  of  condition  for 
which  the  insurers  might  avoirl  them,  but  which  they  have 
waived,  the  over-insurance  exists.  Mitchell  v.  Lycoming 
Mut.  Ins.  Co.  51  Penn.  St.  402.     1865. 

§  110.  An  insurance  policy  issued  by  the  Xew  En- 
gland Company,  piovided  that  if  the  insured  shoul'd  have 
existing,  during  the  continuance  of  that  policy,  any  other 
insurance  not  consented  to  by  that  company  in  writing,  and 
mentioned  in  or  endorsed  upon  the  policy,  then  the  insur- 
ance by  that  company  should  be  void.  Held,,  that  although 
the  assured  had  existing,  during  a  portion  of  the  term  em- 
braced in  such  policy,  other  insurance  not  consented  to 

20 


I 


450 


OTHER   INSURANCE. 


by  the  New  England  Company,  either  in  writing  or  ver- 
bally, still,  if  such  other  insurance  had  ceased  to  exist  at 
the  time  of  the  loss  which  the  assured  was  seeking  to  re- 
cover of  the  New  England  Company,  his  right  of  recovery 
would  not  be  affectecf.  New  England  Fire  &  Marine  Ins* 
Co.  V.  Schettler,  38  111.  166.     1865. 

§  111.  A  fire  policy,  by  an  insurance  company, 
through  its  agent,  contained  a  provision,  that  if  the  assured 
should  thereafter  make  any  insurance  on  the  property  de- 
scribed therein,  and  should  not  give  notice  thereof  to  the 
company,  and  have  the  same  endorsed  on  the  policy,  or 
otherwise  acknowledged  by  the  company  in  writing,  the 
policy  should  be  of  no  further  eflfect.  The  assured  after- 
wards handed  the  policy  to  an  agent  of  the  company,  who 
was  authorized  to  receive  applications,  issue  policies  and 
receive  premiums,  and  a^iplied  to  him  for  atfditional  in- 
surance on  the  property  m  other  companies,  for  which  he 
was  also  agent,  and  the  agent  before  receiving  the  pre- 
miums for  the  additional  insurance,  or  delivering  the  pol- 
icies therefor,  inserted  in  the  first-mentioned  policy  the 
words,  "  other  insurance  permitted  without  notice,  until 
required.  J.  C.  M."  Ifetd,  that  the  insertion  of  such 
.clause  was  within  the  scope  of  the  agent's  authority; 
and  that  the  procuring  of  further  insurance  without  any 
other  notice  to  the  company,  did  not  work  a  forfeiture  of 
the  policy.  Warner  v.  Peoria  Marine  &  Fire  Ins.  Co.  14 
Wis.  318. 

§  112.  Policy  with  a  clause  of  avoidance  in  case  of 
double  i:isurance  was  issued  to  plaintiff.  Plaintiff's  father, 
without  his  directions,  paid  the  premium  for  another  in- 
surance in  a  different  company,  but  no  policy  was  issued 
before  the  fire,  the  plaintifl^  however,  having  received  the 
insurance  money  on  this  contract ;  IleM,  1st.  This  con- 
tract was  a  double  insurance,  within  the  clause  of  the 
plaintiff's  policy;  2d.  The  plaintiff  having  taken,  the 
benefit  of  such  contract  had  avoided  his  policy.  Dafoe  v. 
Johnstown  Distr.  Mut.  Ins.  Co.  7  U.  C,  C.  P.  55.     1857. 

§  113.  There  being  a  clause  both  in  the  fire  and 
marine  policies  requiring  notice  of  other  insurance,  to  be 
given  with  diligence,  and  endorsed  on  the  policy,  although 


1' 

L 


OTHER   INSURANCE. 


451 


no  policy  has  yet  been  issued,  and  therefore  endorsement 
on  the  verbal  contract  became  impossible,  yet  the  assured 
must  still  show  that  such  notice  was  given  or  dispensed 
with.  If  with  actual  knowledge  of  such  other  insurance 
the  contract  is  recognized  as  still  in  force,  the  proof  of 
notice  is  dispensed  with.  And  agreeing  to  transfer  the 
policy  for  the  benefit  of  creditors,  they  becoming  responsi- 
Die  for  the  premium,  is  such  recognition.  Eureka  Ins. 
Co.  V.  Robinson,  56  Pa.  St.  256.    1867. 

§  114.  The  notice  required  of  other  insurance  does 
not  relate  to  other  insurance  by  another  person,  for  in- 
stance, by  a  mortgagee ;  if  it  did,  semhle,  that  the  plaint- 
iff's ignorance  of  the  fact  is  a  sufficient  excuse  for  want  of 
notice.  If  the  company  itself  ^lad  issued  the  other  policy, 
that  knowledge  was  a  sufficient  notice.  Rowley  v.  Empire 
Ins.  Co.  3  Keyes,  5^7.     1867. 

§  115.  The  assured's  policy  is  not  avoided  for  not 
making  known  the  existence  of  a  policy  of  which  the  as- 
sured had  never  heard,  issued  by  the  same  company,  who 
therefore,  necessarily,  had  notice  of  its  existence,  to  the 
former  owner  of  the  premises,  on  his  interest  as  mort- 
gagee.   Rowley  v.  Empire  Ins.  Co.  36  N.  Y.  550.     1867.^ 

§  1 16.  A  dealer  buys  stock  already  insured,  and  the  pol- 
icy is  assigned  to  him  with  the  company's  consent.  This 
policy  contained  a  clause  of  forfeiture  in  case  of  other  in- 
surance. As  by  mixing  such  new  stock  with  his  old,  to 
replace  sales,  the  insurance  on  the  old  covered  also  the 
new  stock  incorporated  with  it ;  Held,  to  be  other  insur- 
ance, and  forfeits  the  policy  on  the  new  stock.  Peoria  F. 
&  M.  Ins.  Co.  V.  Anapow,  45  111.  86.     1867. 

§  117.  A  policy  to  be  void  "if  another  insurance 
shall  be  made  on  the  property  insured,"  covered  a' stock 
of  goods.  These  goods  were  removed  and  merged  in  an- 
other stockj  which  was  insured  under  policies  covering 
accruing  stocks  in  other  companies.  Iield,  that  this  was 
a  case  of  accruing  stock  that,  oq  the  merging  the  other 
policies,  attached  to  these  goods,  constituting  other  insur- 
ance thereon,  and  invalidating  the  former  policy.  Wash- 
ington Ins.  Co.  V.  Hayes,  17  Oh.  St.  432.     1867. 


452 


OTHER   INSURANCE. 


s  ' 


!   ' 


§  118.  The  company  applied  to  for  insurance  asked 
the  company  sued  to  share  the  risk,  without  the  request 
of  the  assured,  and  the  risk  was  accordingly  shared,  and 
two  policies  issued.  The  policy  of  the  second  company 
required  an  endorsement,  '  if  any  other  insurance  lias  been 
or  shall  hereafter  be  made,"  <fec.  Held.,  that  this  policy 
was  neither  prior  nor  subsequent  to  the  other,  but  con- 
temporaneous;  and  being  given  with  a  knowledge  of  the 
other,  neither  the  spirit  nor  the  letter  of  the  clause  was 
violated.  Washington  Ins.  Co.  v.  Davison,  30  Md.  91. 
1868. 

§  119.  The  forfeiture  from  a  breach  of  the  condition 
in  the  policy,  forbidding  other  insurance  without  notice 
and  permission  endorsed  on  the  policy,  is  only  void  at  in- 
surer's option ;  that  is,  it  inay  be  waived ;  but  assisting, 
upon  a  loss,  in  assessing  the  amount  of  the  damage,  re- 
ceiving two-thirds  of  the  loss  from  the  two  other  insurers 
for  the  assured,  and  afterwards  returning  the  unexpired 
premium  and  canceling  the  policy,  is  not  a  waiver»of  the 
forfeiture  for  other  insui'ance.  Baer  v.  Phoenix  Ins  Co. 
4  Bush.  242.     1868. 

§  120.  The  receipt  by  a  general  agent  of  defendant 
of  renewal  jDremiums,  after  he  Jiad  full  knowledge  of  other 
insurance  on  the  premises,  waives  tlie  condition  requiring 
notice  thereof,  although  the  policy  provides  that  no  condi- 
tion can  be  waived,  except  in  writing  by  the  secretary. 
Carroll  v.  Charter  Oak  Ins.  Co.  10  Abb.  Pr.  N.  S.  166. 
1868. 

§  121.  Policy  with  a  clause  of  forfeiture  in  case  of 
any,  other  insurance,  prior  or  sul)sequent,  not  consented  to 
in  writing  by  the  company.  The  agent  consented  to  the 
assured  getting  further  insurance,  which  he  did.  Heldy 
the  policy  is  not  void,  though  the  coisent  is  not  in  writing, 
the  assured  having  acted  on  it,  and  though,  on  the  renewal 
of  the  original  policy,  the  assured  has  not  told  the  agent 
of  the  aciditional  insurance,  if  there  is  no  fraud.  Carrugi 
V.  Atlantic  'F.  Ins.  Co.  40  Ga.  135.     1869. 

§  122.  Quaere,  whether  if,  when  all  the  insurance  is 
made  by  the  same  agent  acting  for  various  companies,  it 


L 


OTHER  INSURANCE. 


453 


*is  not  a  waiver  of  tbe  conditions  against  other  insurance  ? 
Shurtleff  v.  Phenix  Ins.  Co.  57  Me.  137.     1869. 

§  123.  Policy  contained  a  clause  of  avoidance  for 
insurance  beyond  $23,000,  up  to  which  amount  plaintiff 
became  insured  in  various  companies  ;  one  company,  three 
months  before  the  loss,  notified  him  that  his  policy  would 
be  canceled  at  a  certain  time,  whereupon  the  assured  pro- 
cured the  same  amount  in  another  company ;  the  policy 
was  not  in  reality  canceled  for  a  month  afterward,  during 
which  time  therefore  there  was  an  over-insurance.  Held, 
the  policies  relied  on  as  a  breach  of  the  covenant  against 
over-insurance  must  be  in  force  at  the  time  of  the  loss ;  if 
void  at  that  time,  they  are  no  obstacle  to  the  recovery. 
As  in  all  cases  of  neglect  of  a  promissory  duty,  the  risk 
is  suspended  only  during  the  time.  Here  the  insured  in- 
tended to  comply  literally  with  his  contract. 

Per  Bliss,  J.  It  is  well  settled,  though  not  unani- 
mously, that  if  the  over-insurance  is  a  void  one,  or  one 
that  cannot  be  enforced,  it  shall  not  avoid  the  first.  Ober- 
meyer  v.  Globe  Mut.  Ins.  Co.  43  Mo.  573.     18G9. 

§  124.  A  notice  which  was  required  in  case  of  further 
insurance  was  given,  but  stated  the  amount  larger  than  it 
really  was,  and  stated  the  other  company's  name  wrongly. 
Held,  the  defendant  not  being  damnified  by  such  mistake, 
and  no  fraud  appe.'i  ii<r,  the  policy  was  not  vitiated.  Osser 
v.  Provincial  Ins.  C  o.  12  U.  C,  C.  P.  133.     18G2. 

§  125.  Policy  to  be  void  "  if  any  other  insurance  has 
been  or  shall  be  made,  etc.,  not  consented  to  in  writing." 
Held,  whether  one  of  two  polioioj  taking  effect  at  the 
same  hour,, was  prior  or  subsequent,  is  immaterial,  and  it 
is  not  to  l)e  presumed  Avithout  i)roof  that  they  were  simul- 
taneous, and  notice  should  have  been  given  to  the  other 
company.  Manhattan  Ins.  Co.  v.  Stein  cfe  Zang,  5  Bush. 
G52.     1869. 

§  126.  A  policy  requiring  "notice  n  any  other  insur- 
ance "  *  *  is  forfeited  by  other  insurance  without  no- 
tice. Notice  that  insured  is  going  to  insure  in  another 
company  is  not  notice  of  other  insurance.  Healey  v.  Im- 
perial F.  Ins.  Co.  5  Nevada,  268.     1869. 


454 


OTHER  INSURANCE. 


I   '< 


§  127.  A  new  policy,  though  given  as  a  renewal  of » 
an  old  one,  is  a  new  contract  requiring  to  be  notified  as 
being  other  insurance,  although  the  defendant  had  notice 
of  the  old  jx>licv ;  and,  semlle,  notice  of  an  intention  to 
renew  is  not  notice  of  the  fact  of  renewal.  Healev  v.  Im- 
l)erial  F.  Ins.  Co.  5  Nevada,  268.     1869. 

§  128.  Policy  to  be  of  no  effect  in  case  any  other  in- 
surance has  been  or  shall  be  made,  without  being  notified 
to  the  company,  and  its  consent  written  thereon.  The  as- 
sured had  obtained  another  policy,  and,  on  the  same  day, 
applied  for  further  insurance  of  the  same  general  agent, 
who  represented  both  companies,  which  was  issued  to 
him  in  the  defendant  company,  but  with  no  endorsement 
of  the  prior  insurance.  Ileld,  the  issuing  of  a  policy  j*  >ei 
legal  parol  notice  of  a  prior  insurance,  is  equivalent  to  a 
written  consent,  or  a  waiver  of  it  (disapproving  the  Massa- 
chusetts rulings  to  the  contrary,  unless  these  may  have 
been  based  on  peculiar  charter  provisions).  Kenton  Ins. 
Co.  V.  Shea  &  O'Conuell,  0  Bush.  174.     1869. 

§  129.  The  policies  requiring  consent  to  other  insui'- 
ance  to  be  endorsed,  the  applications  were  all  made  to  the 
same  agent,  who  notified  the  difi'erent  companies  of  the 
fact.  Ilelit,  a  suflicient  comi)liance  tantamount  to  the  en- 
dorsement. Ins.  Co.  of  N.  Amer.  v.  McDowell,  50  111.  120. 
1869. 

§  130.  A  clause  of  forfeiture  "if  the  insu/ed  or  any 
other  i^ersons  interested  shall  have  any  other  contract  of 


insurance 


* 


not  consented  to,"  itc.  J/eld,  that  the 
other  person  interested,  meant  interested  in  the  plaintiff's 
insurance,  not  that  those  having  a  separate  interest  in  the 
proj^erty  not  connected  with  the  ])laintiff  could  defeat  the 
Jatter's  insurance  b}'  insuring  their  own  interest — that  in- 
surance by  the  thild  i)erson  above  named  did  not  defeat 
the  j)laiutift''s  policy.  Acer  v.  Merchants'  Ins.  Co.  57  Barb. 
08.     1870. 

§  131.  Policy  in  a  mutual  company  on  a  dwelling 
and  brewery  so  niuch,  on^  fixtures  so  much ;  the  charter 
contained  a  condition  of  avoidance  for  further  insurance 
without  consent.    The  defendant's  request  for  a  charge 


1 


OTHER   INSURANCE. 


455 


that  if  the  assured  afterwards  procured  other  insurance 
on  the  fixtures,  without  giving  notice,  they  must  exclude 
the  amount  insured  on  the  fixtures  in  making  their  verdict, 
should  be  grnnted.    111.  Mut.  F.  Ins.  Co.  v.  Fix,  53  111.  151. 

1870. 

§  132.  One  of  two  joint  owners  applied  for  insurance, 
which  was  issued  in  his  own  name;  returning  the  policy 
as  not  what  he  designed,  by  not  including  the  other  joint 
owner's  interest,  the  agent  added  the  words,  "  in  case  of 
loss,  if  any,  one-half  payable  to  G.  P.,  as  his  interest  may 
appear."  The  applicant  had  other  insurance  on  his  own 
interest,  not  consented  to  in  writing  by  the  company.  The 
policy  required  any  other  insurance  on  "  said  property, '  to 
be  consented  to  in  writing.  Held,  the  court  can  look  at 
surrounding  circumstances  in  the  construction,  and  these 
show  that  a  joint  interest  should  be  construed  to  be  in- 
sured, and  that  the  other  insurance  was  not  therefore  on 
the  same  insurable  interest,  which  was  intended  by  the 
words  "  said  property,"  and  did  not  constitute  double  in- 
surance. Pitnev  V.  Glens  Falls  Ins.  Co.  Gl  Barb.  335. 
1871. 

§  133.  "  A  second  insurance,  unless  by  consent  of  the 
insured,  vc'ds  his  policy."  Code,  §  2770.  The  object  of 
this  provision  being  to  prevent  fraudulent  fires,  the  policy 
is  void,  though  the  second  insurance  is  capable  of  being  re- 
sisted because  of  misrepresentations  or  want  of  notice  of 
the  prior  insurance.'  Lackey  v.  Georgia  Home  Ins.  Co.  42 
Ga.  456.     1871. 

§  134.  The  cluu'ter  jirovidiug  that  jiolicies  shall  be 
void  for  other  insurance  "unless  such  double  insurance 
shall  exist  by  consent  of  the  company,  endorsed  on  the 
policy  under  the  hand  of  the  secretary.  IMdy  this  pro- 
vision could  not  be  waived  by  the  company ;  their  consent 
to  double  insurance  can  only  be  shown  by  endorsement 
under  the  hand  of  the  secretary.  Couch  v.  City  F.  Ins.  Co. 
of  Hartford,  38  Conn.  181.     1871. 

§  135.  The  policy  required  written  consent  thereon 
for  t'.ny  prior  or  subsequent  insurance.  Some  months 
after  other  insurance  had  been  obtained,  an  agent  of  this 
company,  other  than  the  one  through  v/hom  the  policy 


•:'^. 


'■ 


456 


OTHER  INSURANCE. 


was  obtained,  and  residing  in  another  place,  endorsed  on 
it,  "  Other  insurance  to  the  amount  of  $4,000  is  hereby- 
permitted,"  but  there  was  no  signature.  Jleld,  the  consent 
should  have  been  signed  by  the  general  agent,  whose- 
countersign  was  required  on  the  policy  itself,  or  evidence 
of  facts  dispensing  with  his  signature  should  be  given. 
That  the  local  agent  in  a  different  place  not  having  been 
held  out  as  havmg  powers  to  act  elsewhere,  the  assured 
dealt  with  him  at  his  peril,  and  is  bound  to  learn  the  ex- 
tent of  his  authority.  That  though  material  facts  made 
known  to  the  proper  local  agent  are  supposed  to  be 
known  to  his  principals,  yet  the  knowledge  of  the  proper 
local  agent  of  such  endorsement,  he  not  having  done  any- 
thing to  ratify  it,  or  to  induce  a  reliance  on  it,  is  no  estop- 
pel or  waiver,  as  to  the  company,  of  such  unauthorized 
endorsement.  Security  Ins.  Co.  v.  Fay,  22  Mich.  467. 
1871. 

§  136.  On  breach  of  the  condition  of  forfeiture  for 
other  insurance  not  consented  to,  the  policy  becomes  void 
at  once,  and  nothing  can  revive  it  short  of  a  new  contract 
on  valid  consideration,  or  such  conduct  as  by  misleading 
the  assured  is  an  estoppel.  Without  such  evidence,  the 
question  of  waiver  cannot  be  left  to  the  jury  (and  per 
Cam^yhell,  C.  J.^  that  mere  knowledge  of  it  by  the  com- 
pany, without  other  act,  is  no  more  than  knowledge  that 
the  assured  had  seen  fit  to  terminate  his  policies).  The 
statement  of  the  other  insurance  in  the  proofs  of  loss  is 
an  admission  dispensing  with  any  other  proof  of  the  breach 
of  condition.  N.  Y.  Central  Ins.  Co.  v.  "Watson,  23  Mich. 
4SG.     1871. 

§  137.  If  an  agent,  notified  of  prior  insurance,  issues 
the  policies  without  making  the  required  endorsement 
thereof,  the  endorsement  is,  waived.  City  F.  Ins.  Co.  of 
Hartford  v.  Carrugi,  41  Ga.  66.     1871. 

§  138.  Policy  to  be  of  no  binding  force  if  there  shall 
be  made  "  any  further  insurance  without  being  notified  to 
the  company,  and  its  consent  written  hereon."  The  de- 
fendant and  the  K.  Ins.  Co.  had  the  same  general  agent ; 
the  assured  the  day  after  obtaining  the  policy  from  him, 
obtained  further  insurance   in  the  K.  Ins.  Co.  from  the 


OTHER  rNSURANCE. 


45r 


same  agent,  which  was  not  notified  to  the  defendants,  nor 
endorsed  its  policy.  Held,  the  defendant  had  notice  from 
the  very  moment  its  general  agent  issued  the  other  policy, 
upon  which  it  had  the  election  of  canceling  the  policy  by 
returning  the  premium,  or  of  retaining  the  premium  and 
keeping  it  in  force.  Van  Bories  v.  United  L.  F.  <fe  M.  Ins. 
Co.  8  Bush.  133.     1871. 

§  139.  A  policy  stipulating  that  "  in  case  the  insured 
shall  have  already  any  other  insurance  *  *  not  noti- 
fied to  this  company,  *  *  this  insurance  shall  be  void," 
is  forfeited  by  failure  to  give  notice  of  former  insurance. 
Duclos  tfe  Co.  V.  Citizens'  Mut.  Ins.  Co.  23  La.  An.  332. 
1871. 

§  140.  A  condition  avoiding  the  policy  in  case  of 
other  insurance,  without  the  consent  of  the  company  writ- 
ten thereon,  mav  be  waived  T)y  the  insurers  agent.  Whit- 
well  V.  Putnam  1^.  Ins.  Co.  C  Lansing,  1G6.     1872. 

§  141.  An  insurance  upon  mei-chandise  contained  in 
rectifying  establishment  which  is  held  for  sale,  covers  the 
actual  property  insured,  and  also  applies  to  whatever 
property  of  the  same  kind  was  brought  into  the  estal)- 
lishmeut.  Therefore,  that  the  value  of  the  increased  stock 
of  property  exceeded  in  value  the  original  stock,  and  ex- 
ceeded in  value  the  insurance,  and  also  ;i  second  insurance, 
does  not  prevent  the  latter  from  being  "  other  insurance  " 
within  the  prohibition  of  the  policy,  Avhether  the  second 
policy  is  a  double  insurance  is  effected  by  the  second 
policy,  qwere.  Whitwell  v.  Putnam  F.  Ins.  Co.  G  Lansing, 
IGG.     1872. 

§  142.  Local  agents  authorized  to  transact  all  the 
companies'  business  in  their  locality,  are  general  agents. 
And  general  agents  have  authoi'ity  to  -waive  the  condition 
that  a  policy  is  to  be  void  in  case  of  otlier  insurance  not 
consented  to  in  writing  thereon.  And  when  the  agent 
examines  the  policy  issued  by  his  company,  in  connection 
with  other  policies  on  the  same  property,  on  the  request 
of  the  assured  that  he  would  see  if  they  were  all  right, 
and  he  pronounces  them  all  right,  this  is  a  Avaiver  of  such 
condition,  especially  when,  witli  such  knowledge,  the  agent 


i' 


458 


PAROL    CONTRACT. 


subsequently  renewed  the  policy,  consented  to  a  removal 
of  the  property,  and  an  assignment  of  the  policy. 

An  assent  to  such  other  insurances  is  an  assent  also  to 
the  maintenance  of  that  amount  of  other  insurance,  and 
therefore  extends  to  new  policies  in  other  companies,  ob- 
tained at  the  expiration  of  the  other  insurance  assented  to 
in  lieu  thereof  Pechner  v.  Phoenix  Ins.  Co.  6  Lansing, 
411.     1872. 

See  Agent,  §  63,  77,  80,  82.  Burden  of  Proof,  7.  Cancellation,  17, 18. 
Contribution,  1,  5,  10,  11.  Encumbrance,  51.  Endorsements,  1.  Entirety 
and  Divisibility  of  Policy,  4,  7.  Evidence,  84,  85.  Interest  in  Policy,  11. 
Questions  for  Court  and  Jury,  3.  Responsibility  of  Assignee  for  Acts  of 
Assignor,  3,  4,  12,  18.    Subrogation.  3.    Warranty  and  Representation,  7. 


PAROL   CONTRACT. 


§  1.  Open  policy  executed.  Agent  orally  agreed, 
afterwards,  to  insure  under  the  policy  certain  bales  of  cot- 
ton for  additional  premium,  which  was  not  endorsed  on 
the  policy.  Ilehl.,  a  binding  contract.  Kennebec  Co.  v. 
Augusta'ins.  Co.  C  Gray,  Mass.  204.     1856. 


9 


Plaintiff  insured  his  stock  of  goods  for  $800,  in 
No.  21  D  Avenue,  and  whilst  the  policy  was  in  force,  re- 
moved them  to  No.  371  Grand  street.  He  notified  the 
company  of  this  change,  and  left  the  policy  at  the  oflRce 
for  the  purpose  of  having  the  risk  transferred,  and  there 
was,  ui)on  the  trial,  evidence  tending  to  show  an  acquies- 
cence on  the  i^art  of  the  company  in  the  change.  The  act 
of  incoi'poration  confei'red  upon  the  president,  or  other 
person  appointed  by  the  board  of  directors  for  that  pur- 
j)ose,  the  power  to  make  contracts  of  insurance,  the  i)oli- 
cies  issued  in  pursuance  of  such  contracts,  to  be  signed  by 
tne  i^resident  and  countersigned  by  the  secr(;tary,  and 
such  policies  to  be  ])indiiig  upon  the  comj)any  in  like 
manner  as  if  ma<le  under  seal  of  the  c<mq>any.  Held, 
that  under  the  act  of  incorporation  of  this  company,  no 
contract,  either  parol  or  written,  could  be  binding,  unless 


t 


PAROL   CONTEACT. 


459 


il 


it  had  received  the  signature  of  the  president,  secretary, 
or  other  person  fonnally  designated  by  a  majority  of  the 
directors ;  that  by  the  removal  of  the  goods,  the  policy 
became  inoperative ;  and  that  pai'ol  evidence  to  show  a 
verbal  agreement  to  transfer  the  risk  to  the  new  location, 
was  incompetent,  as  no  such  agreement  could  be  binding, 
unless  signed  by  the  president,  and  countersigned  by  the 
Secretary.  Spitzer  v.  St.  Mark's  Ins.  Co.  6  Duer,  N.  Y.  6. 
1856. 

§  3.  If  a  valid  agreement  to  insure  and  deliver  a  pol- 
icy was  made,  under  which  the  company  are  liable  for  the 
loss  sought  to  be  recovered,  no  judgment  should  be  given, 
except  that  the  jilaintiff  recover  the  amount  of  the  loss, 
not  exceeding  the  sum  insured,  and  such  an  action  is  one 
which  the  Code  in  New  York  requires  should  be  tried  by 
a  jury.  Rockwell  v.  Hartford  Fire  Ins.  Co.  4  Abb.  N.  Y. 
179.     1857. 

§  4.  Policy  was  issued  to  "  Benjamin,  agent."  Benja- 
min was  one  of  a  company  owning  the  jiroperty  insured, 
and  held  a  mortgage  on  it  for  nine  thousand  dollars.  Aft- 
erwards, the  mortgage  was  foreclosed,  and  the  property 
bid  in  by  Benjamin  on  his  debt.  Benjamin  then  made  a 
contract  to  sell  the  property  to  another  pai'ty,  and  upon 
notifying  the  company  of  this  fact,  tLey  consented  'that 
the  policy  should  remain  valid,  until  the  title  should  be 
perfected  in  the  vendee.  Held,  that  the  legal  effect  of  this 
change  of  ownership,  and  the  consent  of  the  defendants 
after  notice  of  such  change,  was  to  create  a  new  contract 
between  the  parties,  and  that  the  old  policy,  thereafter, 
became  as  effectual  for  his  indemnity,  as  a  new  jiolicy  is- 
sued in  his  own  name,  and  describing  lim  as  the  owner, 
could  have  been.  Benjamin  v.  Saratocca  County  Mut.  Ins. 
Co.  17  N.  Y.  415.     1858. 

§  5.  The  fifth  section  of  charter  of  the  contpany  pro- 
vided, that  "all  policies,  or  contracts  fgunded  thereon, 
shall  be  subscribed  *by  the  president  and  attested  by  the 
secretary,  and  the  said  company  shall  be  liable  for  all  loss 
or  damage  by  lire,  or  other  casualty,  agreeable  to  the  terms 
thereof."  The  sixth  section  jaovidetf"  that  every  person 
who  shall  become  a  member  by  effecting  insurance,  shall, 


460 


PAROL    CONTRACT. 


before  he  receives  his  policy,  deposit  his  promissory  note 
for  such  a  sum  of  money  as  shall  be  determined  by  the 
directors."  The  eighth  section  provided  "  that  every  mem- 
ber of  said  company  shall  be  bound  to  pay  for  losses,  and 
in  proportion  to  the  amount  of  his  deposit  note,  and  the 
company  shall  have  a  lien  on  the  building  insured  to  the 
amount  of  the  notes,  when  they  shall  file  a  memorandum 
with  the  clerk  of  the  county."  An  agreement  had  been 
made  with  the  secretary  of  this  company  for  insurance  of 
the  property,  and  applicant  proposed  to  pay  the  premium, 
but  the  secretary  said,  "never  mind,  pay  it  some  other 
time ; "  and  further  said  that  he  would  be  insured  from 
that  day.  On  the  18th  of  April  the  policy  was  filled  up, 
and  on  the  20th,  secretary  wrote  to  applicant,  requesting 
him  to  sign  and  return  the  note  enclosed,  and  send  the 
cash  percentage,  $7  20.  This  letter  was  put  in  the  mail 
on  the  21st,  and  on  the  22d,  before  applicant  had  an  op- 
23ortuuity  of  answering,  the  property  was  destroyed ;  but 
on  same  day  he  tendered  the  premium  note  and  cash  per- 
centage, in  person,  at  the  office  of  the  company;  which 
being  refused,  this  suit  was  brought  in  equity  to  compel 
performance  of  agreement,  and  obtain  relief.  IlelJ^  that 
the  deposit  of  the  note  was  a  condition  precedent,  without 
which  no  one  can  become  a  member ;  and  no  one  can  be 
insured  directly  or  indirectly,  without  becoming  a  mem- 
ber, or  at  least  Avitliout  placing  himself  in  a  situation  so 
that  he  is  entitled  to  l)e  a  member,  and  is  prevented  by 
fault  of  the  company;  and  the  facts  not  showing  such 
fault,  in  this  case,  the  relief  prayed  for  could  not  be 
granted.  Belleville  Mut.  Ins.  Co.  v.  Van  AVinkle,  1  Beas- 
iey,  N.  J.  333.     1858. 

§  6.^  The  plaintiff  effected  an  insurance  with  the  de- 
fendants, and,  after  the  ])oliey  had  run  for  one  yeai",  the 
treasurer  of  the  plaintiff  and  president  of  the  company 
made  an  agreement  to  continue  the  risk,  as  permanent, 
until  one  party  gave  notice  to  the  other  of  a  desire  to  ter- 
minate the  agreement.  Belying  upon'  such  arrangement, 
the  treasurer  gave  himself  no  further  concern  about  the 
renewal  of  the  policy  than  to  take  the  receipt  when  handed 
to  him  by  the  president,  and  pay  the  premium  when  con- 
venient.   The  last  renewal  receipt  had  been  made  out  in 


PAROL    CONTRACT. 


461 


Juljr,  1847,  and  before  the  receipt  for  the  next  year  was 
received,  or  the  premium  paid,  the  church  was  destroyed 
by  fire.  Ileld^  that  this  agreement  between  the  president 
and  treasurer  was  not  void,  as  against  the  statute  of 
frauds,  but  was  a  valid  parol  contract.  Trustees  First 
Baptist  Church  v.  Brooklyn  Fire  Ins.  Co.  19  K  Y.  305. 
1859.  This  case  purj^orts  to  reverse  the  decision  of  the 
court  below ;  but  in  case  of  same  style  in  18  Barb.  69,  the 
same  conclusion  as  above  is  there  reached  also. 

§  7.  A  contract  of  insurance  against  fire  may  be 
made  and  proved  without  writing.  A  transfer,  although 
notarial,  of  a  mortgage,  the  subject  of  insurance,  does  not 
destroy  the  insurable  interest  then  existing,  a  contre-lettre 
sous  seing  prive  from  the  transferee,  showing  that  the 
transfer  was  nominal.  A  clause  in  the  acts  constituting 
the  charter  of  an  incorporated  insurance  company,  provid- 
ing "  that  all  policies  of  assurance  whatever,  made  under 
the  authority  of  this  act  or  of  the  ordinance  aforesaid, 
which  shall  be  subscribed  by  any  three  directors  of  said 
corporation,  and  countersigned  by  the  secretary  and  man- 
ager, and  shall  be  under  the  seal  of  the  corporation,  shall 
be  binding  upon  the  corporation,  though  not  subscribed  in 
the  presence  of  a  board  of  trustees,  provided  such  policies 
be  made  and  subscribed  in  conformity  to  a  by-law  of  the 
corporation,"  does  not  exclude  other  means  of  proving  a 
contract  of  insurance,  consented  to  by  them.  Interest  on 
the  amount  insurfed  may  be  awarded  from  the  day  of  the 
loss.  Montreal  Assurance  Co.  v.  McGillivray,  8  Lower 
Canada,  Q.  B.  Appeal  Side,  401.  1858.  Eeversed,  9 
Lower  Canada,  488.     1859. 

§  8.  Under  an  oral  contract  of  insurance,  the  insured 
may  recover  for  a  loss,  although  after  it  occurred,  and  while 
the  insurers  were  ignorant  of  it,  he  paid  them  the  premium, 
and  received  from  them  in  lieu  of  such  subsisting  contract, 
a  written  policy  which  was  not  binding  on  the  insurers  by 
reason  of  not  being  countersigned  by  one  of  their  officers 
as  was  required  in  the  body  of  it.  Kelly  v.  Common- 
wealth Ins.  Co.  10  Bosw.  N.  Y.  82.     1862. 

§  9.  A  mere  demand  of  the  premium,  without  in- 
sisting upon  it,  or  tendering  a  valid  policy,  will  not  termi- 


li 


463 


PAKOL    CONTRACT. 


nate  a  subsisting  oral  contract  of  insurance.    Kelly  v. 
Commonwealth  fns.  Co.  10  Bosw.  N.  Y.  82.     1862. 

§  10.  A  mere  oral  contract  of  insurance,  supported 
by  a  sufficient  consideration,  which  is  to  take  effect  forth- 
with, although  it  may  be  entered  into  contemporaneously 
with  an  agreement  by  the  insurers  to  deliver,  and  the  as- 
sured to  accept  subsequently,  as  a  substitute  therefor,  a 
written  policy  by  the  former  in  the  form  usually  adopted 
by  them,  becomes  bintline  and  remains  in  force  until  the 
delivery  or  tender  of  such  policy.  Until  then,  the  condi- 
tion usually  inserted  in  such  policies,  requiring  prepay- 
ment of  the  premium  to  make  them  binding,  unless  ex- 
pressly adopted  by  the  parties  in  such  oral  contract,  forma 
no  part  of  the  contract  of  insurance  between  them.  Kelly 
V.  Commonwealth  Ins.  Co.  10  Bosw.  N.  Y.  82.     1862. 

§  11.  An  application  for  the  insurance  against  fire  of 
certain  engravings  similar  in  all  respects  to  others  on 
which  the  insurer  had  recently  issued  a  policy  to  the  same 
applicant,  was  made  on  Saturday:  the  parties  agreed 
verbally  upon  all  the  terms  of  such  insurance  except  the 
rate  of  premium ;  the  previous  insurance  was  mentioned 
in  the  conversation,  and  the  insurer  promised  to  make  out 
a  policy  and  send  to  the  assured  on  the  next  Monday 
morning.  Ileld^  that  the  jury  might  well  find  a  present 
contract  to  insure  at  the  former  rate  of  premium  and  to 
furnish  the  written  evidence  on  Monday,  and  that  upon 
such  finding,  a  recovery  for  a  loss  happening  on  the  inter- 
vening Sunday  might  be  had.  Audubon  v.  Excelsior  Ins. 
Co.  27N.  Y.  216.     1863. 

§  12.  Under  a  provision  in  the  charter  of  an  insur- 
ance company,  "that  all  policies  of  insurance  made  by 
the  corporation  shall  be  subscribed  by  the  president,  or, 
in  case  of  his  death  or  absence,  by  the  vice-president,  and 
countersigned  and  sealed  by  the  secretary  of  the  com- 
pany : "  a  contract  or  agreement  to  execute  a  policy  of  in- 
surance is  not  within  the  terms  of  the  charter,  and  may 
be  valid  though  made  by  an  agent  verbally.  City  of 
Davenport  v.  Peoria  Marine  &  Fire  Ins.  Co.  17  Iowa,  276. 
1864. 

§  13.    In  1860,  contracts  of  insurance  were  not  re- 


PAROL    CONTRACT. 


463 


quired  by  law  to  be  in  writing,  but  thej  may  be  under  the 
revenue  laws  passed  since  that  date  imposing  a  stamp 
duty  thereon.  Western  Massachusetts  Ins.  Co.  v.  Duffey, 
2  ifansas,  347.     1864. 

§  14.  It  is  competent  to  prove  a  usage,  that  where 
there  has  been  a  verbal  agreement  for  insurance,  and  the 
terms  agreed  upon  and  entered  in  the  books  of  the  com- 
pany, the  contract  for  insurance  is  considered  as  valid  for 
the  insured,  although  the  premium  is  not  paid.  Baxter 
v.  Massasoit  Ins.  Co.  13  Allen,  Mass.  320.     1860. 

§  15.  In  an  action  against  an  insurance  company, 
upon  a  policy  of  insurance,  and  also  upon  an  agreement 
to  insure,  if  it  appears  that  a  policy  has  been  filled  out 
and  never  delivered,  but  retained  in  the  possession  of  the 
defendants'  agent,  and  it  is  in  dispute  whether  it  was 
filled  out  in  pursuance  of  any  previous  completed  agree- 
ment as  to  the  terms  of  insurance,  and  there  is  evidence 
tending  to  show  that  the  defendants'  agent,  under  author- 
ity conferred  upon  him,  agi'eed  to  insure  the  property  of 
the  plaintifl',  and  accordingly  filled  out  a  policy  for  that 
purpose,  and  took  it  to  the  office  of  the  plaintiff's  agent  to 
deliver  it  to  him  and  receive  the  premium,  but  did  not 
find  him,  and  therefore  retained  the  policy  until  the  de- 
struction of  the  property  by  fire,  which  was  about  a 
month  afterwards,  the  judge  is  not  bound  to  rule  as  a 
matter  of  law,  "  that  the  purpose  and  time  of  operation  of 
the  arrangement  respecting  the  policy  had  expired"  be- 
fore the  loss,  but  it  should  be  left,  under  instructions,  to 
the  jury  to  determine  whether  or  not  the  contract  was  at 
an  end.  Baxter  v.  Massasoit  Ins.  Co.  13  Allen,  Mass.  320. 
1866. 

§  16.  An  applicant  for  insurance  received  from  the 
agent  the  usual  interim  receipt ;  after  the  expiration  of  the 
time  specified  in  the  receipt,  but  before  any  policy  was 
completed,  the  property  was  destroyed  by  fire,  after  which 
the  company  refused  to  pay  the  loss  or  to  issue  a  policy. 
The  a^ent  had  told  the  assured  the  risk  was  accepted,  and 
the  evidence  showed  the  same.  The  court  decreed  pay- 
ment.    Penley  v.  Beacon  Ins.  Co.  7  Grant  Ch.  130.    1859. 

§  17.     A  contract  of  insurance  need  not  be  in  ■'—'Hing 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


A^ 


1.0 


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PAEOL    CONTRACT. 


by  common  law.  And  an  insurance  for  a  year,  including 
its  date,  as  the  act  does  not  extend  beyond  one  year,  is 
within  it,  and  therefore  not  contrary  to  the  statute  of 
frauds.  Sanborn  v.  Fireman's  Ins.  Co.  16  Gray,  448. 
1860. 

§  18.  The  charter  gave  the  right  to  insure  by  the  sig- 
nature of  their  president,  or  of  such  other  person  and  in 
such  form  as  their  rules  and  by-laws  may  direct ;  these  are 
simply  enabling  words,  and  do  not  prevent  their  contract- 
ing orally.  Sanborn  v.  Fireman's  Ins.  Co.  16  Gray,  448. 
1860. 

§  19.  Action  on  oral  insurance.  Plaintiff's  agent  pre- 
pared and  left  a  general  application  at  the  office  of  defend- 
ant's ??tent,  whose  clerk  afterwards  came  to  him  and  said 
the  0  fjvidant's  agent  would  take  two-thirds  of  the  risk, 
and  alL:  v  %  certain  commission ;  the  two  agents  next  day 
agreed  ok  the  amount,  rate  and  time  of  insurance,  it  not 
being  cev  tain  that  the  amount  of  commissions  offered  was 
accej)ted.  The  two  agents  had  running  accounts,  and  set- 
tled once  a  month.  The  same  afternoon  a  fire  occurred, 
and  defendant's  agent  said  he  did  not  consider  the  risk 
completed.  Held,  evidence  for  the  jury  of  a  contract  be- 
ginning immediately.  Sanborn  v.  Firemiau's  Ins.  Co.  16 
Gray,  448.     1860. 

§  20.  If  an  oral  insurance  is  binding  at  all,  it  should 
contain  the  ingredients  of  a  contract,  viz.:  1.  Subject 
matter.  2.  Kisks  insured  against.  3.  Amount.  4.  Dura- 
tion.    5.  Premium.     (McCunn,  J.,  dissenting.) 

The  amount  and  rate  were  agreed  upon,  and  another 
policy  handed  to  the  company  to  copy  from.  Held^ 
no  oral  insurance,  because  the  terms  were  deficient, 
in  that  the  duration  and  risks  insured  against  were  not 
agreed  upon.  (McCunn,  J.,  giving  an  able  dissenting 
opinion.)  Tyler  v.  New  Amsterdam  Fire  Ins.  Co.  4  Rob. 
(N.  Y.  Sup.  Ct.)  150.     1866. 

§  21.  An  agent  gave  plaintiff,  on  paying  the  premium, 
an  "  agent's  provisional  receipt,"  being  the  usual  form  sup- 
plied by  the  company,  which  acknowledged  the  receipt  of 
the  money,  "  being  the  premium  for  twelve  months,  for 


PAROL    CONTRAO  : 


465 


IS 


which  a  policy  will  be  issued  by  the  fioyal  Insurance  Co. 
within  sixty  days,  if  approve.  I  by  the  manager,  otherwise 
this  receipt  will  be  canceled,  f.nd  the  unearned  premium 
returned."  The  agent  did  not  report  the  transaction  to 
the  company,  and  a  loss  occurred  after  the  sixty  days. 
Held,  this  contained  a  contract  for  interim  insurance ;  the 
company  was  liable  upon  it  up  to  the  fire ;  the  plaintiff 
was  not  bound  to  see  that  the  agent  did  his  duty  to  the 
company,  nor  is  it  an  abandonment  of  the  insurance  that 
he  did  not  demand  a  policy  at  the  end  of  sixty  days. 
Patterson  v.  Koyal  Ins.  Co.  14  Grant's  Ch.  169.     1867. 

§  22.  An  insurance  made  without  issuing  a  policy  is 
to  be  regarded  as  made  upon  the  terms  and  conditions  of 
the  ordinary  policies  of  the  company  at  the  time.  EureJja 
Ins.  Co.  V.  Kobinson,  56  Pa.  St.  256.     1867. 

§  23.  Insurance  contracts  are  not  required  to  be  in 
writing  by  common  law,  nor  by  a  statute  that  "  a\l  2)olicies 
shall  be  signed  by  the  president,"  <fec.,  and  when  thus  exe- 
cuted shall  "  be  as  binding  "  as  if  "  executed  under  the  cor- 
porate seal."  Walker  v.  Metropolitan  Ins.  Co.  56  Me.  371. 
1868. 

§  24.  Suit  on  premium  notes.  Cha^'ter  of  a  mutual 
company  provided  that  the  policy  should  be  void  upon 
alienation  of  the  property.  The  property  was  sold,  and 
the  secretary  of  the  company  agreed  that  the  policy  should 
be  altered  to  cover  other  property  of  the  assured,  and  this 
agreement  he  indorsed  on  the  policy ;  additional  premium 
was  given,  and  assured  continued  to  pay  assessments.  The 
charter  and  by-laws  required  that  policies  should  be  issued 
only  on  a  written  application,  and  should  be  signed  by  the 
president  and  secretary.  Held^  as  the  policy  was  void  as 
to  the  original  property,  and  as  to  the  new  property,  it 
was  neither  a  new  policy  nor  an  agreement  for  a  policy, 
because  the  secretary's  act  was  beyond  his  authority,  and 
a  fraud  on  the  company,  and  a  loss  could  never  have  been 
enforced;  therefore  the  company  cannot  recover  on  the 
premium  notes,  which  are  wholly  without  consideration, 
and  the  assured's  past  payments  have  been  made  by  him 
on  void  notes.  Mound  City  Mut.  Fire  &  Marine  Ins.  Co. 
V.  Curran,  42  Mo.  374.    1868. 

30 


466 


PAKOL   EVIDENCE. 


§  25.  An  agreement  to  insure  is  not  required  by  the 
common  law  or  the  statute  of  frauds  to  be  in  writing,  nor 
by  a  clause  of  the  charter  requiring  "  all  policies  or  con- 
tracts of  insurance  shall  be  subscribed  by  the  president," 
which  clause  applies  only  to  jDolicies  or  executed  insur- 
ances, not  to  the  initial  contract  or  executory  agreements 
for  policies ;  and  a  court  of  equity  will,  to  avoid  circuity, 
adjudge  damages  as  on  an  executed  contract.  Security 
Fire  Ins.  Co.  of  N.  Y.  v.  Kentucky  Marine  &  Fire  Ins.  Co. 
7  Bush.  81.     1869. 

§  26.  An  insurance  contract  for  one  year  may  be  made 
by  parol. 

An  insurance  contract  is  made  with  an  agent  author- 
ized to  "bind  the  company  during  the  correspondence." 
The  application  not  being  acted  upon  by  the  company  be- 
fore a  loss,  on  account  of  the  agent's  neglect,  without  fault 
of  the  applicant,  the  company  is  liable. 

An  applicant  for  insurance  as  mortgagee,  on  becoming 
owner  of  the  premises,  notifies  the  agent,  authorized  to  bind 
the  company,  to  insure  him  as  owner,  which  was  agreed 
to,  no  new  consideration  is  needed. 

A  revenue  stamp  on  an  oral  agreement  is  an  impossi- 
bility.   Fish  V.  Cottenet,  5  Hand.  538.     1871. 

Bee  Agent,  §  27,  69,  89.  Application,  50.  Construction,  39.  Consumma- 
tion of  Contract,  6,  24.  Evidence,  73,  83.  Parol  Evidence,  38.  Payment  of 
Premium,  6,    Pleading  and  Practice,  63.    Who  May  Sue,  37. 


PAROL   EVIDENCE. 

§  1.  Parol  evidence  of  verbal  representation,  as  to 
the  value  of  the  subject  to  be  insured,  made  by  the  as- 
sured at  the  time  of  effecting  the  insurance,  is  inadmissi- 
ble. New  York  Gas  Light  Co.  v.  Mechanics'  Fire  Ins.  Co. 
2  Hall,  N.  Y.  108.     1829. 

§  2.  In  an  action  on  a  policy  of  insurance,  notice  to 
the  attorney  of  the  corporation,  to  produce  their  books, 


PAROL    EVIDENCE. 


467 


"binds  the  principal,  whoever  may  be  its  officers,  or  in 
whose  custody  soever  the  books  may  be ;  and  on  failure  to 
produce  the  books  on  such  notice,  parol  evidence  as  to  the 
choice  of  directors  of  the  defendant  corporation,  and  of 
the  acts  and  doings  of  such  directors,  is  admissible. 
Thayer  v.  Middlesex  Mut.  Fire  Ins.  Co.  10  Pick.  Mass. 
326.     1830. 

§  3.  Policy  of  insurance  against  fire  provided  "  that 
a  misdescription  of  the  materials  and  roofs  of  buildings, 
so  that  the  same  should  be  taken  at  a  lower  rate  than  if 
truly  described,  should  avoid  the  policy."  Assured  mi- 
nutely described  the  situation  and  construction  of  his 
brick  ice-house,  surrounded  and  covered  by  wood,  to  the 
secretary,  who,  in  reducing  the  description  to  writing, 
omitted  to  say  anything  concerning  the  outside  wooden 
frames ;  and  in  an  action  on  policy,  company  set  up  in  de- 
fense a  misdescription  of  the  premises  in  the  policy. 
HeM^  that  parol  evidence  was  admissible  to  show  that 
the  building  was  truly  described  ;  and  that  the  misdescrip- 
tion, if  any,  arose  from  the  mistake  of  the  secretary  of 
the  insurers.  Moliere  v.  Pennsylvania  Fire  Ins.  Co.  5 
Rawle,  Pa.  342.     1835. 

§  4.  Parol  evidence  is  admissible  to  show  the  extent 
of  the  inte'- jst  intended  to  be  protected  by  a  policy,  if  it 
does  not  contradict  the  terms  of  the  policy  itself.  Frank- 
lin Ins.  Co.  V.  Drake,  2  B.  Monroe,  Ky.  47.     1841. 

§  5.  Policy  was  for  "  £1,000  on  oil  mill ;  on  fixed  ma- 
chinery and  millright  works  therein,  £1,000;  on  engine 
house  adjoining  the  mill,  £200 ;  on  steam  engine  therein, 
£300 ;  on  logwood  warehouse  in  which  chopping  dye- 
wood  is  performed,  communicating  with  the  mill,  £200; 
on  warehouse  on  the  other  side  of  the  mill,  to  the  east 
side,  mereljr  for  storing  goods,  £300."  Held,  that  there 
was  no  ambiguity  in  the  policy,  and  that  evidence  to  show 
that  it  was  intended  to  insure  the  machinery  and  gear  in 
the  logwood  warehouse,  was  inadmissible.  Hare  v.  Bar- 
stow,  8  Jurist,  928.     1844. 

§  6.  Where  policy  is  express  as  to  the  subject  of  the 
insurance,  the  court  will  not  change   the  contract,  and 


468 


PAROL    EVIDENCE. 


make  one  for  the  parties,  and  dpply  the  insurance  to  chat- 
tels not  insured,  because  the  assured  intended  to  insure 
them,  nor  admit  parol  evidence  to  alter  its  provisions. 
Holmes  v.  Charlestown  Mut.  Fire  Ins.  Co.  10  Met.  Mass. 
211.     1845. 

§  7.  Where  the  application  was  referred  to  and  made 
part  of  the  policy,  and  the  assured  introduced  evidence  to 
prove  that  he  truly  informed  the  agent  of  the  insurer,  who 
prepared  the  application,  as  to  certain  particulars  not 
stated  therein ;  Held^  that  such  evidence  was  inadmissible. 
Jennings  v.  Chenango  County  Mut.  Ins.  Co.  2  Denio,  N. 
Y.  75.     1846. 

I  8.  In  a  suit  on  a  policy  the  insurance  company  will 
not  be  permitted  to  show  a  verbal  agreement  to  make  cer- 
tain changes  whereby  the  risk  would  be  diminished,  and 
the  non-performance  of  such  agreement.  Both  parties 
must  stand  by  the  contract  as  written.  The  subject  of 
promissory  representations  discussed  by  Ch.  Walworth. 
Alston  V.  Mechanics'  Mut.  Ins.  Co.  Hill,  N.  Y.  329. 
1842.    Reversing  1  Hill,  N.  Y.  510.     1841. 

§  9.  The  original  insured  made  representations,  in' re- 
gard to  lamps  in  picking  room,  in  1 834.  The  policy  was 
renewed  in  favor  of  various  parties  up  to  1846,  when  loss 
occurred ;  the  last  policy  reciting  that  the  insurance  was 
made  on  representations  of  assured  contained  in  his  appli- 
cation. Parol  evidence  held  admissible,  to  show  that  the 
original  application  by  the  first  assured  was  the  document 
referred  to.  Clark  v.  Manufacturers'  Ins.  Co.  2  Wood.  <fe 
Minot,  C.  C.  U.  S.  472.    1847.    8  How.  U.  S.  235.    1850. 

§  10.  No  usage  of  the  company,  nor  even  the  express 
agreement  of  the  parties,  whether  made  previous  to  or  at 
the  time  of  the  execution  of  the  policy,  can  be  admitted 
to  exr  lain,  modify  or  control  the  written  contract.  Illinois 
Mut.  Ins.  Co.  V.  O'Neile,  13  111.  89.     1851. 

§  11.  Policy  was  issued  to  S.  on  a  hotel  in  Massachu- 
setts. On  the  same  day  S.  conveyed  the  premises  to  the 
plaintiff  by  a  deed  absolute  on  its  face.  On  the  4th  'of 
the  same  month,  S.,  with  the  assent  of  the  company,  as- 
signed the  policy  to  the  plaintiff  "  as  a  collateral  security.'* 


PABOL    EVIDENCE. 


469 


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Held^  that  parol  evidence  was  admissible  to  show  that 
such  deed  was  intended  as  a  mortgage,  and  that  S.  re- 
tained, therefore,  an  insurable  interest  in  the  property. 
Hodges  V.  Tennessee  Marine  &  Fire  Ins.  Co.  4  Selden,  N. 
Y.  416.     1853. 

§  12.  Parol  evidence  of  a  conversation  between  the 
parties  at  the  time  the  policy  was  made,  as  to  the  night 
watch  to  be  kept  upon  the  premises,  and  that,  by  the  ex- 
press terms  of  the  agreement,  the  "  night  watch "  was  to 
have  the  care  and  watching  of  no  other  premises  at  the 
same  time,  but  that  he  was  to  be  the  exclusive  watch  of 
the  plaintiffs  upon  their  premises ;  Heldy  inadmissible  to 
vary  the  neccssary  legal  effect,  or  the  terms  of  the  con- 
tract. Hovey  v.  American  Mut.  Ins.  Co.  2  Duer,  N.  Y. 
554.     1853. 

§  13.  Parol  evidence  is  not  admissible  to  vary  or  ex- 
plain the  terms  of  a  policy  and  sm*vey,  where  the  latter 
has  been  made  part  of  the  contract,  and  there  is  no  am- 
biguity in  either.  Glendale  "Woolen  Manufacturing  Co. 
V.  Protection  Ins.  Co.  21  Conn.  19.  1851.  Sheldon  v. 
Hartford  Fire  Ins.  Co.  22  Conn.  235.     1853. 

§  14.  Parol  evidence  to  show  that  an  agent  and  di- 
rector of  the  company  made  a  survey  of  the  premises 
insured,  filled  up  the  application,  and  knew  of  the  exist- 
ence of  a  eei'tain  fact,  which  was  set  forth  as  an  avoidance 
of  the  policy,  is  held  inadmissible.  So  also,  is  evidence 
to  show,  that  the  fact  relied  upon  was  not  an  increase  of 
risk,  where,  by  the  express  tenns  of  the  policy,  such  fact 
was  made  material  by  being  cla...sed  among  the  specially 
forbidden  occupations.  Lee  v.  Howard  Fii'e  Ins.  Co.  3 
Gray,  Mass.  583.     1854. 

§  15.  In  an  action  on  a  policy  which  was  endorsed, 
"  This  company  will  not  be  liable  for  any  statement  made 
to  an  agent,  unless  contained  in  the  application ; "  Held^ 
that  parol  evidence  was  inadmissible  to  show,  that  the 
assured  mentioned  a  certain  deed  of  trust  to  the  agent  of 
the  company  at  the  time  of  his  application,  and  that  the 
agent  refused  to  write  it  down,  saying  that  the  amount 
was  too  triflings  Loehner  v.  Home  Mut.  Ins.  Co.  17  Mo. 
247.     1852.    M.nned,  19  Mo.  628.     1854. 


470 


PAKOL    EVIDENCE. 


§  16.  Evidence  of  verbal  communications  of  factSy 
made  to  an  agent  only  authorized  to  receiv:  and  forward 
applications,  is  inadmissible  to  vary  the  terms  of  the 
written  application.  Wilson  v.  Conway  Fire  Ins.  Co.  4 
E.  I.  141.     1856. 

§  17.  Where  policy  stipulated  that,  in  case  applica- 
tion is  made  through  an  agent,  the  applicant  shall  be  held 
liable  for  the  representations  of  such  agent ;  parol  evidence, 
that  the  true  state  of  the  title,  which  was  that  of  mort- 
gagee insured  absolutely,  was  made  known  to  the  com- 
pany's secretary  and  one  of  the  directors,  before  the  policy 
was  issued,  ancl  the  answers  were  then  written  in  by  their 
secretaiy,  in  the  presence  of  said  director,  before  the  appli- 
cation was  signed  by  the  assured,  is  inadmissible.  Jenkins 
V.  Quincy  Mut.  Fire  Ins.  Co.  7  Gray,  Mass.  370.     1856. 

§  18.  Parol  evidence  not  admissible  to  vary  the  terms 
of  a  written  contract,  or  to  show  w*hat  risks  were  intended 
to  be  covered  and  protected  by  the  policy.  Honnick  v. 
Phcenix  Ins.  Co.  22  Mo.  82.     1855. 

§  19.  Parol  evidence  of  an  agreement  between  a  mort* 
gagee  and  a  mortgagor,  that  the  former  should  keej)  the 
premises  insured,  and  the  latter  should  pay  the  premiums 
and  have  the  benefit  of  the  insurance,  is  not  at  all  in  con- 
flict with  the  rule  of  law,  that  parol  evidence  cannot  be 
received  to  contradict,  vary,  or  explain  a  written  contract. 
The, evidence  of  such  an  agreement  is  material,  as  the  effect 
of  it  is  to  entitle  the  mortgagor  to  have  the  avails  of  the 
policy,  in  case  of  loss,  applied  upon  his  debt,  and  precludes 
the  insurers,  on  paying  the  loss,  from  having  recourse  to 
the  securities,  by  way  of  subrogation.  Kernochan  v.  New 
York  Bowery  Ins.  Co.  17  N.  Y.  428.     1858. 

§  20.  Parol  testimony  is  admissible  to  explain  a  latent 
ambiguity,  in  regard  to  the  merchandise  intended  by  the 
parties  to  be  embraced  in  the  policies.  Stone  v.  Elliot 
Fire  Ins.  Co.  45  Me.  175.     1858. 

§  21.  Where  evidence  had  been  permitted  to  show 
that  an  agent,  authorized  to  receive  applications  for  insur- 
ance, had  often  passed  by  after  certain  alterations  increas- 
ing the  risk  were  made,  and  might  have'  seen  them  from> 


PAROL    EVIDENCE. 


471 


the 


the  street ;  Held^  that,  it  not  appearing  that  such  agent  had 
any  power  to  approve  of  an  alteration,  or  increase  of  risk, 
or  that  it  was  any  part  of  his  duty  to  inquire  in  regard  to 
changes,  or  to  notify  the  company,  his  seeing  or  not  seeing 
the  alterations  complained  of,  was  a  fact  wholly  immaterial 
and  irrelevant,  and  ought  not,  therefore,  to  have  been  ad- 
mitted. Robinson  v.  Mercer  County  Mut.  Fire  Ins.  Co.  3 
Dutch.  N.  J.  134.     1858. 

§  22.  Under  policy  containing  precisely  the  same  pro- 
visions in  respect  to  camphene  as  in  17  I^.  Y.  194  (see 
Written  Portion  of  Policy,  |  6) ;  Held^  that  evidence  of  a 
verbal  agreement  at  time  of  issuing  policy,  that  the  insured 
might  use  camphene  as  a  lighting  material,  and  that  a  por- 
tion of  the  premium  paid  was  for  that  privilege  (there 
being  no  written  evidence  to  that  effect),  was  inadmissible. 
Lamotte  v.  Hudson  River  Fire  Ins.  Co.  17  N.  Y.  199.    1858. 

§  23.  A.  gave  his  note  to  an  insurance  company,  and 
the  company  transferred  it  to  B.,  in  payment  of  a  claim  due 
to  B.  The  note  was  endorsed  by  the  president  of  the 
company.  In  a  suit  on  such  note,  between  A.  and  B.,  in 
another  State,  where  the  records  of  the  company  could  not 
be  produced ;  Held^  that  parol  evidence  was  admissible  to 
prove  that  the  president  was  authorized  to  act  as  such,  at 
the  time  of  the  transfer  of  the  note.  Cabot  v.  Given,  45 
Me.  144.    1858.  . 

§  24.  An  insurance  company  transferred  a  promissory 
note  of  A.  to  B.,  in  payment  of  a  claim  due  to  B.  In  a 
suit  between  A.  and  B.  on  such  note ;  Held^  that  although 
there  was  no  specific  authority  in  the  by-laws  of  the  com- 
pany, eiven  to  the  president  to  endorse  notes,  yet  that  such 
authority  was  implied  by  virtue  of  his  being  the  ex-officio 
treasurer,  with  power  to  receive  and  collect  moneys,  adjust 
and  pay  losses,  &c.,  and  that  a  transfer  of  a  note  by  him 
was  valid,  and  sufficient  to  pass  the  title.  Cabot  v.  Griven, 
45  Me.  144.  1858.  See  Mclntire  v.  Preston,  5  Gilm.  DL 
48.     1848. 

§  25.  In  a  policy  on  "  stock  of  goods,"  where  there 
was  a  false  representation  in  the  application  as  to  the 
building  containing  them ;  and  the  lower  court  permitted 


472 


PAEOL    EVIDENCE. 


Earol  evidence  to  show  that  the  agent  of  the  company 
ad  filled  up  the  application,  and  knew  the  true  situation 
and  occupancy  of  the  same ;  Ileld,  that  the  evidence  showed 
good  faith  on  the  part  of  the  assured,  and  was  not  calcu- 
lated in  any  manner  to  prejudice  the  insurers  in  their 
rights ;  and  its  admission,  therefore,  was  not  such  an  error 
as  should  reverse  the  judgment.  Where  instructions  have 
been  given,  which,  though  erroneous,  could  not  have  mis- 
led the  jury  to  the  injury  of  the  insurer,  the  court  will  not 
on  that  account  distui'b  the  judgment  of  the  court  below. 
Howard  Fire  &  Marine  Ins.  Co.  v.  Cormick,  24  lU.  455. 
1860. 

§  26.  Where  verbal  statements  had  been  made  to 
the  insurer  in  respect  to  the  subject  of  insurance,  and  a 
written  application  was  subsequently  drawn  up  and  signed 
by  the  assured ;  Held,  that  the  company  was  not  bound  by 
any  communication  made  before  the  insurance  was  effectea, 
and  not  connected  with  the  application  therefor.  Boggs 
V.  America  Ins.  Co.  30  Mo.  63.     1860. 

§  27.  A  policy  was  issued  on  a  stock  of  tinner's  tools, 
iron  ware,  fixtures,  «fec.,  contained  in  the  westerly  end  of  a 
brick  building  situate  on  the  corner  of  Milton  avenue  and 
Elm  street.  The  policy  was  subsequently  renewed  in 
1855,  and  again  in  1856.  Previous  to  the  last  renewal,  a 
bakeiy,  enumerated  among  the  specially  hazardous  risks, 
was  started  in  adjoining  tenement  of  the  same  building. 
The  policy  prohibited  an  appro2)riation  of  the  premises 
for  such  a  purpose,  and  also  provided  that  if,  at  time 
of  renewal,  the  risk  had  been  increased,  and  the  assured 
failed  to  give  information  thereof,  in  writing,  such  policy 
and  renewal  should  be  void.  At  the  time  of  last  renewal 
assured  made  ku'^^wn  the  faetof  the  existence  of  this  bakery 
to  the  secretaiy  of  the  company,  but  it  was  not  endorsed 
on  the  policy,  or  otherwise  communicated  in  writing ;  Ileld, 
that  the  company,  by  renewing  the  policy  after  such  notice, 
waived  a  strict  compliance  with  the  condition  requiring 
such  communication  to  be  in  writing,  and  that  in  any 
event  the  comj^any  were  estopped  from  setting  up  the  in- 
creased risk  in  bar  to  the  action.  Liddle  v.  Market  Fire 
Ins.  Co.  4  Bosw.  N.  Y.  17P.     1859. 


PAROL    EVIDENCE. 


473 


§  28.  An  insurance  policy  purported  to  insure  S. 
upon  certain  property  described  as  "  nis ; "  the  amount,  in 
case  of  loss,  payable  to  W.  In  an  action  of  assumpsit  on 
the  policy,  brought  by  W.  against  the  company;  Held^ 
that  parol  evidence  was  not  admissible  to  show  that  W. 
was  the  real  party  to  the  contract;  that  the  defendants 
had  agreed  to  insure  a  mortgage  interest  held  by  him,  and 
undertook  to  do  so  by  makin>?  Dut  the  policy  in  the  name 
of  S.  the  mortgagor.  Woodbury  Savings  Bank  v.  Charter 
Oak  Fire  &  Manne  Ins.  Co.  29  Conn.  374.     1860. 

§  29.  In  the  application  and  policy,  assured  described 
the  property  as  "  his,"  when,  in  fact,  by  virtue  of  a  parol 
agreement,  he  was  but  the  equitable  owner  iu  possession, 
the  legal  title  being  in  another,  and  part  of  the  purchase 
money  remaining  unpaid.  The  defendants  claimed  that 
the  assured's  denomination  of  the  property  as  "  his,"  was 
a  misrepresentation  which  rendered  the  insurance  void,  and 
to  meet  that  claim,  assured  offered  evidence  to  show,  that 
he  made  known  to  the  agent  taking  the  application,  the 
true  state  of  the  title,  and  that  agent  then  filled  up  the 
application  in  his  own  language  and  he  (the  assured)  signed 
it ;  Held,  that  the  evidence  was  admissible,  under  the  ck- 
cumstances,  to  estop  the  insurers  from  taking  advantage 
pf  their  o^vn  wrong,  and  was  also  proper,  as  conducing  to 
prove  an  understanding  and  agreement  between  the  parties 
to  consider  and  treat  the  property  as  belonging  to  assured. 
Hough  V.  City  Fire  Ins.  Co.  29  Conn.  10.     1860. 

§  30.  Parol  testimony  is  admissible  to  establish  the 
identity  and  extent  of  property  covered  by  a  policy  of  in- 
surance. Roots  V.  Cincinnati  Ins.  Co.  1  Disn.  Ohio,  138. 
1856. 

§  31.  A  policy  of  insurance  to  "  K.  and  others,"  on 
stock  in  process  of  manufacture,  may  be  shown  by  parol 
evidence  to  have  been  issued  to  a  corporation  in  which  K. 
was  a  stockholder,  having  no  other  title  in  the  property ; 
and  upon  proof  of  that  fact  an  action  may  be  maintained 
thereon  by  the  corporation  in  their  own  name ;  and  evi- 
dence that  before  the  policy  was  issued  K.  owned  the 
property  and  had  made  an  agreement  to  sell  it  to  them, 
under  which  they  had  entered  into  possession,  and  carried 


474 


PAROL    EVmENOE. 


. 


on  alone  the  business  of  manufacturings  and  that  the  appli- 
cation for  insurance  was  made  by  one  of  their  directors, 
who  procured  the  insertion  of  a  provision  therein,  making 
it  payable  to  the  corporation  in  case  of  loss,  tends  to  prove 
that  fact.  Shawmut  Sugar  Refininsf  Co.  v.  Hampden 
Mut.  Ins.  Co.  12  Gray,  Mass.  540.     1859. 

§  32.  Parol  evidence  cannot  be  received  to  control, 
explain  or  modify  a  warranty  in  a  policy  of  insurance. 
Ripley  v.  ^tna  Ins.  Co.  30  N.  Y.  136.     1864. 

§  33.  Verbal  statements,  made  by  an  agent  who 
effects  insurance  for  the  owner  of  the  property,  in  re- 
spect to  the  future  occupation  of  the  building,  are  not  ad- 
missible in  evidence,  in  an  action  upon  the  policy.  If  there 
is  any  warranty  as  to  the  future  use  or  occupation  of  the 
property  insured,  it  must  be  contained  in  the  policy,  or  be 
reduced  to  writing  in  proper  form,  before  it  can  be  admitted 
to  affect  the  construction  or  obligation  of  the  policy. 
Mayor,  <fec.  of  New  York  v.  Brooklyn  Ins.  Co.  41  Barb. 
N.  Y.  231.     1864. 

§  34.  A  statement  in  a  policy  which  is  in  terms  a  war- 
ranty, cannot  be  shown  by  parol  evidence  to  have  been  in- 
serted by  mistake.  Cooper  v.  Farmers'  Mut.  Fire  Ins.  Co. 
50  Penn.  St.  299.     1865. 

§  35.  In  an  action  upon  a  policy  of  insurance  in  which 
it  was  set  up  as  a  defense  that  the  insurable  interest  of 
the  policy-holder  was  transferred  to  another  by  an  absolute 
assignment  in  writing,  after  the  issuance  of  the  policy, 
and  before  the  loss;  Held^  that  parol  evidence  was  ad- 
missible to  show  that  the  assignment,  though  absolute  on 
its  face,  was,  in  fact,  given  as  collateral  security.  Ayers  v. 
Home  Ins.  Co.  21  Iowa,  18 9.     1866. 

S  36.  A  verbal  promise  not  to  use  any  other  fire  in 
the  building  cannot  be  proved.  The  policy  alone  is  the 
contract,  and  cannot  be  varied  by  parol  proof.  Schmidt 
V.  Peoria  M.  h  F.  Ins.  Co.  41  111.  295.     1867. 

§  37.  The  policy  and  application  both  stated  that  the 
hay  and  grain  insured  were  in  the  hay  house  in  the  meadow. 
It  appeared  that  there  were  two  buildings  in  which  hay 


PAROL    EVIDENCE. 


475 


was  kept,  one  of  which  was  more  properly  and  usually 
called  a  bam,  and  was  the  one  intended.  It  was  held, 
that  it  is  a  case  of  latent  ambiguity,  which,  being  raised 
by  parol,  can  be  explained  by  parol.  That  the  fact  that 
building  contained  property  sucL  as  that  insured,  and  that 
the  other  did  not  and  could  not,  is  evidence  as  to  which 
building  was  intended.  That  when  a  latent  ambiguity  is 
found  to  exist,  it  is  for  the  jury  to  ascertain  which  property 
is  meant,  as  in  all  cases  where  evidence  dehors  a  writm^  is 
resorted  to  to  fix  identity  or  locality.  All  evidence  that 
the  grain,  horses,  <fec.,  were  in  the  bam  is  therefore  admis- 
sible, since  the  jury  may  find  that  to  have  been  the  build- 
ing intended. 

The  rule  of  clearness  and  precision  of  evidence  re- 
quired to  reform  an  instrument,  in  cu^e  of  mistake  (the 
mutuality  of  which,  moreover,  is  not  a  (question  for  the 
jury,  p.  118),  is  not  a  mle  as  to  the  amount  of  evidence  to 
explam  a  latent  ambiguity,  wherr  ^jreponderariee  of  evi- 
dence is  sufllcient,  and  where,  though,  if  there  is  no  evi- 
dence, the  instrument  is  void  for  uncertnhity,  yet  if  there 
is  any  evidence,  it  is  for  the  jury  to  weigh  it.  And  al- 
though, in  case  of  mistake,  if  the  judge  thinks  the  evidence 
insufficient  to  justify  a  reform  of  the  contract,  he  may 
withdraw  it  from  the  jury ;  yet  in  a  case  of  latent  am- 
biguity, his  opinion  as  to  its  sufficiency  does  not  bind  the 
jury.  Lycoming  Mut.  Ins.  Co.  v.  Sailer,  67  Pa.  St.  108. 
1870. 

§  38.  That  the  agent  at  the  time  of  and  prior  to  the 
making  the  application,  represented  to  the  applicant  that 
he  would  receive  a  policy  in  force  from  the  date  of  the  ap- 
plication, that  such  was  the  custom  of  the  company,  is  not 
admissible  in  evidence  to  vary  the  writings.  Nor  can  such 
representations  be  considered  as  a  contract  by  the  com- 
pany, definite  and  in  force ;  a  contract  .cannot  consist 
partly  in  writing  and  part  in  parol  (but  the  court  after- 
wards seem  to  say  that  a  contract  could  be  predicated  on 
this,  if  the  agent  had  authority).  Wiunesheik  Ins.  Co.  v. 
Hokgrafe,  53  111.  516.    1870. 

§  39.  A  policy  on  a  stock  of  goods  is  to  be  forfeited 
by  keeping  any  extra  or  specially  hazardous  goods. 


476 


PAYMENT    OF    LOSS. 


Plaintiff  offered  to  prove  that  he  had  sent  another 
policy  to  defendants,  with  a  request  for  one  with  the  same 
wording,  aiid  that  they  sent  the  present  one  in  return. 
Held,  inadmissible.  The  sending  the  present  one  is  neither 
an  admission  that  both  parties  meant  the  same,  nor  shows 
that  a  compliance  with  the  request  was  intended.  Parol 
evidence  cannot  show  a  different  prior  agreement.  Pindar 
V.  Eesolute  F.  Ins.  Co.  of  N.  Y.  47  N.  Y.  114.     1871. 

See  Agent,  f.  86.  Application,  36,  58.  Construction,  19.  Description  of 
Property  Insured,  14,  24.  Encumbrance,  33.  Estoppel,  7,  21.  Evidence, 
38.  Interest  in  Policy,  8,  30,  48,  53,  57,  58.  Other  Insurance,  30,  35,  38,  39, 
128, 133.  Payment  of  Premium,  5.  Premium  Notes,  30.  Rebuild,  Repair, 
or  Replace,  6.  Reform  of  Policy.  16.  Re-Insurance,  8.  Subrogation,  13. 
Title,  28,  49.  Two-thirds  or  Three-fourths  Clause,  1,  3.  Value,  13.  What 
Property  is  Covered  by  Policy,  86. 


PAYMENT   OF   LOSS. 


§  1.  Where  a  stock  company  stipurlated  that  "  pay- 
ment of  losses  shall  be  made  within  sixty  days  after  the 
loss  shall  have  been  ascertained  and  proved,  svithout  any 
deduction  whatever ; "  and  the  insured  had  paid  a  cash 
premium  for  the  insurance ;  Held,  that  he  did  not  thereby 
become  a  member  or  stockholder  of  the  company  within 
the  meaning  of  §  16  of  the  "Act  to  provide  for  tlie  incor- 
poration of  insurance  companies,''  passed  April,  1849,  in 
New  York ;  and  that  therefore,  it  did  not  lie  with  the  de- 
fendants to  say  that  pa^inent  was  to  be  made  at  another 
time  than  that  mentioned  in  the  contract,  or  that  they 
might  withhold  payment  for  the  additional  two  months 
mentioned  in  §  10.  Howard  v.  Franklin  Marine  <fe  Fire 
Ins.  Co.  9  How.  N.  Y.  45. 


o 


An  act  of  the  legislature  providing  for  the  incor- 
poration of  insurance  companies,  authorized  "  suits  to  be 
brought  against  such  companies  by  any  member  for  losses, 
if  payment  is  withheld  more  than  two  months  after  such 
losses  shall  have  become  due."  Under  this  provision,  it 
was  held,  where  amount  due  upon  a  policy  was  ascertained 


PAYMENT    OF    LOSS. 


477 


and  settled  by  a  resolution  of  the  company,  on  13th  Jan- 
nary,  and  the  money  declared  to  be  payable  sixty  days 
thereafter,  that  by  such  settlement  the  money  became  then 
due  and  payable  in  sixty  days  thereafter ;  and  that  a  suit 
commenced  after  that  time  was  well  brought.  Utica  Ins. 
Co.  V.  American  Mut.  Ins.  Co.  16  Barb.  N.  Y.  171.  1853. 
Allen  V.  Hudson  River  Mut.  Ins.  Co.  19  Barb.  N.  Y.  442. 
1854. 

§  3.  Where  policy  provides  that  "  payment  Avill  be 
made  in  sixty  days  after  loss,  proof  and  adjustment  there- 
of;" an  action  will  lie  •within  the  sixty  days,  if  the  insurers 
refuse  to  adjust  the  loss.  Phillips  v.  Protection  Ins.  Co. 
14  Mo.  220.  1851.  Indiana  Mut.  Fire  Ins.  Co.  v.  Rutledge, 
7  Ind.  25.     1855. 

§  4.  On  a  policy  providing  that  the  loss  shall  be  paid 
■within  sixty  days  after  notice  and  proof  thereof,  according 
to  the  conditions  annexed  to  the  policy,  which  require 
such  proof  to  include  a  statement  of  the  interest  of  the 
assured  in  the  property,  the  assured,  if  he  omits  to  insert 
such  a  statement  in  his  proof  of  loss,  cannot  maintain  an 
action  unless  the  omission  is  waived  by  the  officers  of  the 
company.  Shawmut  Sugar  Refining  Co.  v.  People's  Mut. 
Fire  Ins.  Co.  12  Gray,  Mass.  585.     1859. 

,  §  5.  An  insurance  company  ^vill  not  be  protected  in 
paying  a  loss  to  a  mortgagee  after  such  mortgagee  has,  sub- 
sequent to  the  los>?,  assigned  his  mortgage,  and  the  com- 
pany have  received  notice  of  the  assignment.     Haskell  v. 

Monmouth  Fire  Ins.  Co.  52  Me.  128.     1859. 

» 

§  6.  An  order  upon  the  secretary  of  an  insurance  com- 
pany, payable  at  si^ht,  drawn  by  its  duly  authorized  agent, 
and  given  and  received  in  full  satisfaction  for  a  loss  under 
a  policy,  will  operate  as  a  payment  thereof,  before  its  pres- 
entation to  the  secretary.  Spooner  v.  Rowland,  4  Allen, 
Mass.    1862. 

§  7.  A  clause  in  a  condition  in  a  policy,  giving  the 
insurers  thirty  days  within  which  they  shall  have  the  op- 
tion to  rebuild,  is  not  repugnant  to  another  part  of  such 
conuition,  in  which  it  is  stipulated  that  the  company  will 
pay  the  loss  "  within  sixty  days."  Beals  v.  Home  Ins.  Co. 
36Barb.  N.Y.  614.     1862. 


478 


PAYMENT    OF    LOSS. 


I 


§  8.  The  money  due  on  a  policy  of  insurance  for  a  loss 
by  fire  occurring  between  the  date  of  a  contract  for  a  sale 
of  the  property  insured  and  the  time  fixed  for  the  delivery 
of  the  deed,  as  between  the  company  and  the  vendor,  by 
whom  it  was  insured,  belongs  to  the  latter.  Reed  v.  Lu- 
kens,  44  Penn.  St.  200.     1863. 

§  9.  It  seems  that  where  objections  are  made  by  the 
insurers  to  the  preliminary  proofs  of  loss,  the  sixty  days 
at  the  end  of  which  the  loss  by  stipulation  of  the  policy  is 
payable  are  not  to  be  deemed  to  commence  to  run  until 
after  a  reasonaT)le  time  for  the  insured  to  examine  the  ob- 
jections, and  if  amendments  were  required,  to  make  and 
serine  them.  Mayor,  <fec.  of  New  York  v.  Hamilton  Fire 
Ins.  Co.  10  Bosw.  N.  Y.  537.     1863. 

§10.  Where  property  is  insured  against  fire  in  several 
companies,  a'ld  each  policy  contains  a  proviso  that  in  case 
of  a  loss  the  assured  shall  not  be  entitled  to  receive  of  the 
company  issuing  such  policy  any  greater  proportion  of  the 
loss  than  the  amount  insured  by  such  policy  bears  to  the 
whole  amount  insured  upon  the  property ;  the  liability  of 
any  one  of  the  companies  to  pay  the  assured  its  ratable 
share  of  the  loss  is  not  affected  by  the  fact  that  some  of 
the  other  companies  have  paid  more  than  their  share,  so 
that  the  amount  already  received  by  the  assured  is  equal 
to  his  whole  loss.  Fitzsimmons  v.  City  Fire  Ins.  Co.  18 
Wis.  234.     1864. 

§•11.  The  sixty  days  allowed  by  the  policy  for  the 
payment  of  loss  do  not  begin  until  the  proofs  of  loss  are 
rendered.  Nor  does  the  company's  declaration  of  an  in- 
tention to  resist  the  claim  waive  the  delajr  for  sixty  days, 
or  give  a  right  of  demand  before  its  expiration.  Hatton 
V.  Provincial  Ins.  Co.  7  U.  C,  C.  P.  555.  1858.  And  see 
Rice  V.  Provincial  Ins.  Co.  1  U.  C,  C.  P.  548.     1858. 

§  12.  A  mortgage  covenanted  that  the  mortgagor 
would  insure,  and  the  insurance  was  eftected.  On  a  loss, 
the  mortgagor  signed  an  order  to  the  mortgagee,  by  direc- 
tion of  the  company,  to  pay  the  loss  to  the  mortgagee ; 
there  was  then  made  a  verbal  agreement  that  the  mort- 
gagee would  use  it  in  rebuilding.  The  mortgagee  having 
reftised  to  rebuild,  the  company  gave  the  mortgagor  its 


lii 


PAYMENT    OF    LOSS. 


479 


usual  note  for  the  loss,  which  the  mortgagor  assigned  to  a 
third  party  who  knew  all  these  facts.  The  mortgagee 
filed  a  bill  against  the  company  and  the  mortgagor  for  the 
moiiey.  Held,  the  mortgagee  was  entitled  to  have  it.  The 
mortgagor  and  the  endorsee  of  the  note  are  not  necessary 
parties  to  the  bill.  Watt  v.  Gore  Dist.  Mut.  Ins.  Co.  8 
Grant  Ch.  523.     1861. 

§  13.  A  loss  occurring,  it  was  agreed  that  the  assured 
should  draw  a  bill  on  C,  and  C.'s  acceptance  should  be  a 
full  satisfaction  and  discharge  of  the  loss ;  Held,  a  good 
defense^  although  the  bill  were  not  paid  at  maturity. 
Brown  v.  Erie  &  Ontario  Ins.  Co.  21  U.  C,  Q.  B.  425.    1861. 

8  14.  Clause  that  in  case  of  other  insurance  defendant 
would  be  liable  for  only  its  proportion,  &c.  The  policy 
was  $2,000  on  house  and  $2,000  on  furniture  ;  the  other  in- 
surance -was  $2,000  on  house  and  furniture.  Defendants 
claimed  they  were  liable  only  as  if  the  other  insurance  were 
$2,000  on  house  and  $2^000  on  furniture.  Held,  the  whole 
insurance  being  $6,000,  and  defendant's  policy  being$  4,000, 
they  were  liable  for  two-thirds  the  amount  of  the  damage. 
Trustees  Unitarian  Congregation  v.  Western  Ass.  Co.  26 
U.  C,  Q.  B.  175.     1866. 

§  1 5.  Semhle,  the  company  was  to  have  sixty  days  a^er 
notice  and  proofs  of  loss  within  which  to  pay ;  proofs  were 
furnished  to  the  local  agent,  were  never  objected  to  as  in- 
sufficient ;  an  attempt  afterwards  to  make  a  fuller  statement 
does  not  invalidate  the  first,  and  the  sixty  days  begin  from 
the  time  the  proofs  are  furnished.  Ins.  Co.  of  N.  Am.  v. 
McDowell,  50  111.  120.     1869. 

§  16.  A  clause  giving  the  company  sixty  days  in 
which  to  pay  after  proof  of  loss,  applies  only  when  they 
agree  to  pay  or  are  undecided  about  paying ;  but  not  when 
they  peremptorily  refuse  to  pay  the  losb,  in  which  case 
suit  may  be  brought  immediately,  -^ina  Ins.  Co.  v.  Ma- 
guire,  51  111.  342.     1869. 

§  17.  Clause  in  case  of  double  insurance,  that  in  all 
cases  of  other  insurance  the  insured  shall  not  be  entitled 
to  recover  on  this  policy  any  greater  portion  of  the  loss, 
&c. ;  Held,  the  principle  ot  ratable  apportionment  only 


480 


PATIJCENT   OF  LOSS   TO  TRUSTEE. 


I 


^ 


it 


f 


applied  to  over-insurance,  not  where  the  lossisgi'eaterthun 
the  whole  amount  insured.  Phillips  v.  Perry  Co.  Ins.  Co. 
7  Phila.  Kep.  673.     1870. 

See  Assignment,  §  30, 82.    Construction,  13.    Estoppel,  8.    Interest  in  Pol- 
icy, 52.    Preliminary  Proofs,  40.    Renewal  of  Policy,  13.    Waiver,  15. 


PAYMENT  OF  LOSS  TO  TRUSTEE. 

§  1.  Policy  to  L.,  trustee  of  F.,  on  a  ship,  which  was 
lost,  and  F.  with  it.  The  widow  of  F.  notified  the  insurers 
that  L.  was  mere  trustee,  and  to  pay  the  insurance  money 
to  her ;  but  L.,  pretending  that  F.  was  indebted  to  him, 
persuaded  them  to  settle  with  him,  and  thereupon  the 
widow  brought  a  bill  to  recover  of  the  insurers.  .  She  was 
^pointed  administratrix  after  the  suit  was  commenced. 
The  objection,  that  she  was  not  administratrix  at  the  time 
of  filing  the  bill,  was  overruled ;  and  the  insurers  decreed 
to  pay  the  money  to  the  widow,  notwithstanding  +he  set- 
tlement with  L.  Fell  v.  Lutwidge,  Barnardiston  Ch.  319. 
1740. 

§  2.  A  ship-builder  employed  a  broker  to  effect  an 
insurance  at  Lloyds  upon  a  ship,  and  after  loss  gave  the 
ship's  papers  to  the  broker,  and  also  the  policy,  which 
was  in  his  o-sv^n  name,  to  adjust  the  loss.  The  broker  made 
an  adjustment,  according  to  a  usage  generally  known  to 
merchants  and  ship-owners,  but  not  proved  to  be  known 
to  assured,  by  setting  off  amounts  due  fi'om  hir  to  the 
company  on  other  insurances,  against  the  amount  of  loss 
belonging  to  assured;  Held,,  that,  although  the  plaintiff 
was  estopped  from  denying  that  the  broker  had  authority 
to  receive  the  amount  due  from  the  undei-w  riters  in  money, 
he  was  not  bound  by  the  usage,  and,  consequently,  that 
he  was  entitled  to  recover  the  amount  of  the  policy  against 
the  underwriter,  notwithstanding  such  settlement.  Sweet- 
ins  V.  Pearce,  7  Com.  B.  N.  S.  449.  1859.  See  also,  Scott 
V.  Ir\'ing,  1  Barn.  <k  Adol.  605.     1830. 

See  Interest  in  Policy,  §  -^O. 


PAYMENT   OF  PREMIUM. 

§  1.  Where  the  applicant  is  notified  that  the  payment 
of  the  premium  is  a  condition  precedent  to  the  taking  ef- 
fect of  the  insurance,  no  contract  subsists  while  it  remains 
unpaid,  although  the  policy  may  have  been  made  out,  but 
not  delivered.     Flint  v.  Ohio  Ins.  Co.  8  Ohio,  501.     1838. 

§  2.  A  check  on  the  bank,  payable  to  the  order  of 
the  agent  and  accepted  by  him  in  payment  of  the  premium, 
is  in  compliance  with  condition  requiring  payment  before 
policy  can  take  effect.  The  mode  of  payment  not  being 
prescribed  by  the  company,  the  agent  is  at  liberty  to  ex- 
ercise a  discretion  in  the  matter,  and  may  prescribe  the 
mode  of  payment.  Tayloe  v.  Merchants'  Fire  Ins.  Co.  9 
How.  U.  S.  390.     1849. 

§  3.  A  policy  issued  and  delivered  to  the  assured,  in 
which  the  premium  is  acknowledged  as  actually  received, 
will  bind  the  insurer,  though  the  premium  was  not  in  fact 
'paid  till  after  the  fire.  New  York  Central  Ins.  Co.  v.  Na- 
tional Protection  Ins.  Co.  20  Barb.  N.  Y.  468.     1854. 

§  4.  Policy  provided  that  "  no  insurance  should  be 
considered  binding  until  the  actual  payment  of  the  pre- 
mium." Assured  proposed  drawing  a  check  upon  deliv- 
ery of  the  policy,  but  agent  of  insurer  requested  him  to  let 
it  lie,  and  that  he  (agent)  would  call  for  it  when  he 
wanted  it.  The  premium  was  not  paid  until  after  the 
loss.  Held^  that  the  agent  of  the  insurer  had  waived  the 
actual  payment  of  premium,  and  that  he  had  authority  to 
do  so.  New  York  Central  Ins.  Co.  v.  National  Protection 
Ins.  Co.  20  Barb.  N.  Y.  468.     1854. 

§  5.  Parol  evidence  to  show  a  waiver  of  the  condi- 
tion requiring  payment  of  premium  before  the  policy 
should  attach,  is  no  more  a  violation  of  the  rule  prohibit- 
ing parol  evidence  to  vary  or  contradict  a  written  contract, 
than  would  have  been  evidence  by  parol  of  the  actual 
performance  of  the  condition.  Goit  v.  National  Protection 
Ins.  Co.  25  Barb.  N.  Y.  189.     1855. 

81 


482 


PAYMENT  OF    PREMIUM. 


§  6.  An  insurance  company,  through  its  president^ 
agreed  with  the  treasurer  of  the  1st  Baptist  Church  in  Brook- 
lyn, to  continue  renewing  its  policy  and  calling  for  the  pre- 
mium when  desired,  until  one  party  or  the  other  should 
give  notice  of  a  desire  to  cancel  such  agreement.  In  pur- 
suance of  such  an*an^ement  the  renewals  were  regularly 
made  out  far  several  years,  and,  within  fi'om  thirty  to 
sixty  or  ninety  days  afterwards,  the  president  would  take 
the  renewal  receipt  to  the  treasurer  and  collect  the  pre- 
mium. On  the  2l8t  of  July,  1847,  the  last  renewal  had 
been  taken  to  the  treasurer,  and  in  September,  1848, 
following,  the  property  was  destroyed,  but  the  renewal 
receipt  had  not  then  been  delivered  to  the  treasurer,  nor 
had  the  premium  been  paid.  The  policy  stipulated  that 
"  no  insurance  should  be  considered  valid  or  binding,  un- 
til the  actual  payment  of  the  premium."  Held^  that  there 
had  been  a  waiver  of  payment  of  premium  on  the  part  of 
the  company  by  the  parol  agreement  between  president 
and  assured ;  and  the  company  were  liable  for  the  loss. 
Baptist  Church  of  Brooklyn  v.  Brooklyn  Fir  Ins.  Co.  18 
Barb.  N.  Y.  69.  1854.  See  same  case,  \\>  N.  Y.  305. 
1859.     Parol  Contract,  §  6. 

§  7.  Where  the  policy  on  the  face  of  it  acknowledges 
the  receipt  of  the  premium,  parol  evidence  cannot  be  in- 
troduced to  contradict  it,  and  insurers  will  be  estopped  by 
their  receipt  from  alleging  that  the  policy  was  void  be- 
cause the  acknowledgment  was  untrue.  Goit  v.  National 
Protection  Ins.  Co.  25  Barb.  N.  Y.  189.     1855. 

§  8.  Where  policy  stipulated  that  "no  insurance 
should  be  binding  until  actual  payment  of  the  premium," 
and  the  agent  told  the  assured  to  let  the  premium  alone 
and  he  would  call  for  it  when  ready  to  makv^  his  report  to 
the  company,  and  in  the  mean  time  the  propeT>'  ,•-.••«!  de- 
stroyed by  fire,  and  the  premium  paid  to  thu  -  -  t  after 
the  fire;  Held^  that  there  had  been  a  waiver  o>*  t  ^  condi- 
tion requiring  payment  of  premium,  and  the  in. v.  .  r,^  were 
liable.  Goit  v.  National  Protection  Ins.  Co.  25  Barb.  N, 
Y.  189.     1855. 

§  9.  If  the  premium  is  tendered  to  the  agent  when 
application  for  insurance  is  made,  and  he  does  not  receive 


PAT3IENT  or    PBEMUM. 


483 


3sitlent^ 

Brook- 
tbe  pre- 

should 
In  pur- 
gularly 
iirty  to 
Id  take 
he  pre- 
iral  had 
',  1848, 
[•enewal 
rer,  nor 
ed  that 
Ing,  un- 
Lit  there 

part  of 
resident 
he  loss. 

Co.  18 
Y.  305. 

wledges 

;  be  in- 

pped  by 

Old  be- 

ational 


surance 
imium," 
n  alone 
eport  to 

,••.'•«!  de- 

t  after 

Cvondi- 

m  were 

arb.  N.. 

it  when 
receive 


m 


m 


it,  but  says  he  will  consider  it  as  paid,  and  authorizes  the 
applicant  to  keep  the  money  until  the  policy  arrives,  the 
contract  will  be  as  binding  upon  the  company  as  if  the 
money  was  actually  paid  over  to  the  agent.  Hallock  v. 
Commercial  Ins.  Co.  2  Dutch.  N.  J.  268.     1856. 

§  10.  An  agreement  made  in  good  faith  between  an 
insurance  agent,  having  authority  to  receive  an  insurance 
premium,  and  the  insured,  that  the  agent  shall  become 
personally  responsible  to  his  principals  for  the  amount  of 
such  premium,  and  the  insured  his  personal  debtor  there- 
for, constitutes  a  payment  of  the  premium  as  between  the 
insured  and  the  insurance  company.  Bouton  v.  American 
Mut.  Life  Ins.  Co.  25  Conn.  542.  1857.  Sheldon  v.  Con- 
necticut Mut.  Life  Ins.  Co.  25  Conn.  207.     1856. 

§  11.  In  an  action  brought  on  a  policy,  the  defense 
was,  that  the  consideration  of  the  policy  was  a  cash  pre- 
mium, and  that,  under  the  general  act  of  the  New  York 
Legislature  of  April  10th,  1849,  the  defendant,  being  a 
mutual  company,  had  only  authority  to  issue  policies  for 
the  consideration  of  ji  'miuni  notes.  The  charter  under 
said  act  provided  that  the  premium  mi^ht  be  cash  or 
notes  as  the  parties  should  agree.  Held,  that  this  previs- 
ion of  the  charter,  not  being  in  conflict  with  the  general 
act,  was  valid ;  and  that  one  might  become  a  member  of 
a  mutual  insurance  company  by  paying  a  cash  premium  as 
well  as  by  giving  a  premium  note.  Union  Ins.  Co.  v. 
Hoge,  21  How.  U.^S.  35.     1858. 

§  12.  One  of  the  by-laws  governing  the  contract  pro- 
vided that,  before  the  policy  shall  be  delivered,  the  assured 
shall  pay  such  premium  and  give  such  deposit  note  as 
the  president  and  directors  shall  determine.  Held,  that 
no  contract  of  insurance  could  be  completed,  nor  could  the 
policy  take  eflfect,  until  such  premium  was  paid  and  such 
note  was  given  ;  and  that  neither  the  president,  secretary, 
nor  board  of  directors  of  a  mutual  company  had  authority 
to  waive  a  compliance  with  the  by-law.  Brewer  v.  Chel- 
sea Mut.  Fire  Ins.  Co.  13  Gray,  Mass.  203.     1859. 

§  13.  It  seems  that  the  officers  of  a  mutual  insurance 
company  have  no  power  to  waive  a  stipulation  in  a  policy 


484 


PAYMENT    OF    PREMIUM. 


which  has  been  executed  and  delivered,  that  no  insurance 
shall  take  effect  until  the  cash  premium  has  been  actually 
paid  at  the  office  of  the  company.  Mulrey  v.  Shawmut 
ilut.  Fire  Ins.  Co.  4  Allen,  Mass.  116.     1862. 

§  14.  "Where  it  was  stipulated  in  a  policy  that  it 
should  not  be  valid  until  the  premium  had  been  actually 
paid  at  the  office  of  the  company;  Held,  that  such  stipu- 
lation was  not  complied  with  or  waived  by  a  payment  of 
the  premium  to  an  insurance  agent  through  whom  the  ap- 
plication was  made,  and  the  policy  delivered,  the  policy 
also  containing  an  express  stipulation  that  every  insurance 
agent,  broker  or  other  person  forwarding  applications  or 
receiving  premiums,  should  be  deemed  the  agent  of  the 
applicant,  and  not  of  the  company ;  although  the  company 
were  in  the  habit  of  settling  a  monthly  account  with  such 
agent,  and  he,  after  the  loss,  tendered  the  premium  to  the 
company.  Mubey  v.  Shawmut  Mut.  Fire  Ins.  Co.  4  Allen, 
Mass.  116.     1862. 

§  15.  A  policy  of  insurance  executed  and  delivered 
by  a  mutual  insurance  company  is  invalid  until  the  cash 
premium  has  been  actually  paid  at  the  office  of  the  com- 

Sany,  if  it  contains  an  express  stipulation  to  that  effect, 
[ulrey  v.  Shawmut  Mut.  Fire  Ins.  Co.  4  Allen,  Mass.  116. 
1862. 

§  16.  If  the  by-laws  of  a  mutual  insurance  company 
'  provide  that  *'  each  person,  before  the  policy  shall  be  bind- 
ing on  the  company,  shall  pay  to  the  treasurer  or  agent 
such  premium  and  make  such  deposit  as  the  directors 
shall  determine,"  the  company  is  not  rendered  liable  on  a 
policy  which  is  executed  but  not  delivered,  and  for  which 
no  premium  has  been  paid,  by  an  oral  promise  of  their 
treasurer  to  the  applicant  for  insurance  that,  if  anything 
should  happen,  he  would  see  the  premium  paid,  or  that  he 
would  take  it  upon  himself  to  keep  the  policy  good. 
Buffum  V.  Fayette  Mut.  Fire  Ins.  Co.  3  Allen,  Mass.  360. 
1862. 

§  17.  An  insurance  company  may  waive  a  condition 
in  its  usual  form  of  policy,  that  in  order  that  the  policy 
should  be  binding  the  premium  must  be  actually  paid,  as 


PAYMENT    OF    PREJUUM. 


485-- 


insurance 
1  actually 
Shawmut 


ly  that  it 
1  actually 
uch  stipu- 
ayment  of 
m  the  ap- 
he  policy 
insurance 
cations  or 
int  of  the 
company 
with  such 
im  to  the 
I.  4  Allen, 

delivered 
1  the  cash 
'  the  com- 
lat  effect, 
klass.  116. 


company 
1  be  bind- 

or  agent 

directors 
able  on  a 
for  which 
B  of  their 

anything 
or  that  he 
icy  good, 
lass.  360. 


condition 
he  policy 
r  paid,  as 


well  as  any  other  condition  in  the  contract  intended  for 
its  benefit ;  and  if  the  insured  is  allowed  to  act  upon  the 
confidence  of  such  waiver,  the  company  is -estopped  to 
deny  the  fulfillment  of  the  condition.  Heaton  v.  Manhat- 
tan Fire  Ins.  Co.  7  R  I.  502.     1863. 

§  18.  An  acknowledgment  in  a  policy  of  the  receipt 
of  the  premium  is  not  conclusiv^e  upon  the  insurer.  He 
may  still  show  that  it  has  not  been  paid.  Sheldon  v.  At- 
lantic Fire  and  Marine  Ins.  Co.  J6  N.  Y.  117.     1 863. 

§  19.  Where  under  a  condition  requiring  payment  of 
assessments  within  thirty  days  from  demand,  and  avoid- 
ing the  policy  until  paid,  a  balance  remained  unpaid  be- 
yond that  time  and  on  the  day  of  the  fire,  but  was  paid 
the  same  day  to  the  agent  of  the  company,  and  by  him 
reported  to  the  company,  without  objection  on  the  part  of 
either  of  them,  such  a  receipt  is  a  waiver  of  the  forfeiture. 
Lycoming  oounty  Mut.  Ins.  Co.  v.  Schollenberger,  44  Penn. 
St.  259.     1863. 

§  20.  An  agreement  to  give  credit  for  the  premium,, 
renders  the  policy  binding  without  actual  payment.  Bap- 
tist Church  V.  Brooklyn  Fire  Ins.  Co.  28  N.  Y.  153.    1863. 

§  21.  The  rule  that  an  act  done  at  one  time  may  ta^e 
effect  as  of  a  prior  time  by  relation  back  to  the  principal 
contract,  is  applicable  to  contracts  of  insurance ;  the  agree- 
ment to  insure  being  the  principal  act,  the  payment  of  the. 
premium  and  the  formal  execution  of  the  policy  may  be 
concurrent  therewith  or  subsequent  thereto.  City  of  Dav- 
enport V.  Peoria  Marine  &  Fire  Ins.  Co.  17  Iowa,  276> 
1864. 

§  22.  Where  an  insurance  agent  is  authorized  under 
the  previous  dealings  between  him  and  the  insured  to 
charge  the  premium  on  a  renewal,  in  account,  or  to  resort 
to  an  implied  agreement  for  its  payment,  he  may  make  a 
renewal  on  the  implied  promise  to  pay,  as  well  as  upon 
actual  payment  of  the  premium ;  notwithstanding  a  pro- 
vision in  the  policy  that  no  insurance  shall  be  considered 
binding  until  the  actual  payment  of  the  premium.  Post 
V.  ^tna  Ins.  Co.  43  Barb.  if^.  Y.  351.     1864. 

§  23.     Where  an  insurance  company,  by  its  charter^ 


I 


4S6 


PAYJIENT    OF    PREAIIUM. 


can  issue  policies  either  on  the  mutual  or  cash  plan,  it  may 
receive  for  such  policies  promissory  notes  on  time.  Farm- 
ers' Bank  v.  Maxwell,  32  N.  Y.  579.     1865. 

§  24.  The  deli\'ery  of  a  policy  by  a  general  agent  of 
the  company  without  requiring  pa}Tnent  of  the  premium 
raises  a  presumption  that  a  short  credit  is  intended  to  be 
given,  and  the  policy  will  be  binding.  Boelien  v.  Wil- 
itamsburgh  City  Ins.  Co.  35  N.  Y.  131.     1866. 


25. 


An  agreement  in  a  policy  that  upon  its  assign- 
ment the  assignee  shall  be  responsible  for  unpaid*premium, 
is  a  personal  contract,  and  gives  no  right  of  action  against 
the  assignee.  Washington  Ins.  Co.  v.  Grant  &  Stone,  2 
Pa.  L.  J.  [*308].     ISU. 

^26.  Clause  that  "  no  insurance  shall  be  considered 
as  bmding  until  actual  payment  of  the  premium."  Evi- 
dence is  admissible  of  a  general  usage  of  the  company  not 
to  be  paid  the  premium  at  the  delivery  of  the  policy — 
shown  by  receipts  for  premiums  dated  after  the  policies, 
and  the  plaintiff  not  being  required  to  pay  the  premium  at 
the  delivery  of  the  policy,  nor  being  informed  that  the 
company  would  not  be  bound  until  j)ayment,  or  that  the 
contract  was  not  complete.  Pino  v.  Merchants'  Mut.  Ins. 
Co.  19  La.  An.  214.     1867. 

§  27.  A  policy,  for  one  year  from  November  11,  in 
consideration  of  $160,  to  be  actually  paid  within  fifteen 
days,  provided  that  the  company  should  not  be  liable 
until  the  premium  in  full  was  actually  paid,  if  not  paid 
within  fifteen  days  the  policy  is  to  be  void. 

A  loss  occurring  within  fifteen  days,  and  after  the  loss, 
but  within  the  fifteen  days,  a  tender  of  the  premium. 
Held,  actual  payment  is  a  condition  precedent  to  the  risk 
attaching  at  all,  because  the  company  cannot  be  bound 
for  fifteen  days  while  the  assured  has  an  option  without 
legal  responsibility  for  non-payment,  and  after  the  loss 
there  was  nothing  upon  which  the  risk  could  attach. 
Bradley  v.  Potomac  F.  Ins.  Co.  of  Balto.  32  Md.  108.    1869. 

§  28.  Action  on  a  note  given  for  premium.  Defense 
that  the  note  was  invalid.  The  payee,  a  mutual  company, 
was  authorized  to  insure  for  a  specific  rate  of  premium  to 
be  paid  i?i  cash  as  companies  not  mutual  are  accustomed 


iK 


PLACE   OF  MAKING   CONTRACT. 


487 


to  do.  The  object  being  to  allow  it  to  do  a  mutual  and 
a  non-mutual  business  ;  Held,  the  premium  could  be  re- 
ceived by  a  note,  which,  though  an  extension  of  time,  is 
none  the  less  cash,  as  distinguished  from  the  mutual  pre- 
mium note,  and  is  therefore  valid.  Carey  v.  Nagle,  2 
Abbott  U.  S.  15G.    1870. 

§  29.  Policy  provides  that  when  a  note  has  been  taken 
for  a  cash  premium,  any  default  in  its  payment  suspends 
liability  on  the  policy.  Held,  that  though  a  forfeiture  for 
such  cause  is  not  forbidden,  the  law  will  lean  against  it. 

On  the  third  day  after  maturity,  the  maker  of  the  pre- 
mium note  wrote  proposing  to  pay  the  balance  due,  not 
knowing  the  amount ;  the  company  at  once  applied  the 
amount  m  their  hands  on  the  note,  and  directed  him  to  re- 
mit the  balance,  which  he  did  by  first  mail.  Held,  the 
cause  of  forfeiture  was  waived  on  the  acceptance  of  his 
proposal  to  pay,  although  the  building  burned  before  the 
remittance  was  forwarded.  Sims  v.  State  Ins.  Co.  of  Han- 
nibal, 47  Mo.  54.     1870. 

See  Agent,  §  42,  64.    Cancellation,  14.    Consummation  of  Contract,  17, 
25,  26,  28.    Parol  Contract,  10.    Premium  Notes,  17.    Waiver,  35. 


PLACE   OF   MAKING   CONTRACT. 

§  1.  In  an  action  on  a  pi'^niium  note,  taken  in  Ohio, 
for  a  policy  made  by  a  New  York  company  in  New  York, 
through  application  forwarded  to  them  by  a  surveyor ;  it 
was  Meld,  that  the  contract  for  insurance  was  made  in 
New  York,  and  did  not  violate  the  Ohio  law,  prohibiting 
foreign  insurance  companies  to  insure  in  Ohio  without 
license.    Hyde  v.  Goodeuow,  3  Comst.  N.  Y.  266.    1850. 

§  2.  By  the  terms  of  the  policy,  applicants  for  insur- 
ance were  recj^uired  to  deposit  the  application  and  pre- 
mium note  with  the  secretary  of  the  company,  when,  if 
approved,  the  policy  to  be  dated  as  of  the  day  of  ap- 
proval, unless  the  applicant  directed  that  it  should  be 
dated  as  of  some  future  day.  One  P.  was  agent  of  the 
company  for  the  purpose  of  receiving  and  forwarding  ap- 
plications, and  received,  in  Canada,  the  application  of  a 


II 


488 


PLACE  OF 


'.KINO    CONTBACT. 


party  residine  there,  and  forwarded  it  to  the  company  at 
Le  Rov,  its  place  of  business  at  New  York.  Upon  receipt 
of  sucn  application,  together  with  the  premium  and  pre- 
mium note,  the  company  executed  a  policy  at  Le  Koy, 
and  returned  it  to  the  agent  for  delivery  to  applicant. 
Held^  that  the  contract  was  consummated  by  the  final  as- 
sent on  the  part  of  the  company,  and  upon  that  event, 
and  not  upon  its  delivery  to  the  assurea,  became  opera- 
tive ;  and  that  the  validity,  therefore,  of  the  contract 
must  be  determined  by  the  law  of  New  York,  as  it  was 
there  made.  Western  v.  Genesee  Mut.  Ins.  Co.  2  Kern. 
N.Y.  258.     1855. 

§  3.  Where  policy  was  issued  by  a  company  in 
Waterford,  N.  Y.,  and  policy  purported  to  be  dated  there 
and  signed  by  the  president  and  secretary ;  but  the  nego- 
tiation was  had  by  an  agent  of  the  company  in  Massachu- 
setts, and  by  the  terms  of  the  policy  it  was  not  to  be  valid 
unless  countersigned  by  their  agent  at  Worcester,  and  it 
was  so  countersigned  and  delivered  by  him ;  Held,  that  it 
took  effect  as  a  contract  from  the  countersignature  and  de- 
livery of  the  policy,  and  was  to  be  interpreted  according 
to  the  laws  and  usages  of  Massachusetts,  in  the  same 
manner  with  any  other  Massachusetts  policy  of  insurance 
against  fire.  Daniels  v.  Hudson  River  Fire  Ins.  Co.  12 
Cush.  Mass.  416.     1853. 

§  4.  A  company  located  in  New  York,  issued  a  policy 
in  Pennsylvania,  through  an  agent  only  authorized  to  re- 
ceive applications  to  forward  to  the  company,  but  the 
policy  was  made  out  at  the  office  of  the  company  in  New 
York.  In  an  action  on  the  premium  note ;  Held,  that  the 
contract  was  not  void,  as  being  in  violation  of  the  laws  of 
Pennsylvania ;  and,  2d,  that  the  company  not  having  any 
agent  in  Pennsylvania,  the  proviso  of  the  statute  of  that 
State,  requiring  eveiy  agent  of  a  foreign  insurance  com- 
pany to  file  a  duplicate  of  the  statement,  <fec.,  had  no  ap- 
plication.    Huntley  v.  Merrill,  32  Barb.  N.  Y.  62G.    1860. 

§  5.  The  agent  in  this  State  of  a  foreign  insurance 
company  is  requested  by  letter  to  issue  a  policy  on  the 
writer's  hotel  in  New  Hampshire,  which  policy  is  issued 
and  sent ;  Held,  the  lex  loci  contractus  is  this  State.  Bai- 
ley V.  Hope  Ins.  Co.  56  Me.  474.     1869. 


PLEADING  AND  PRACTTCE. 


§  1.  Under  statute  of  Virginia,  giving  summary  rem- 
edies against  delinquent  subscribers  and  members,  a  judg- 
ment will  not  be  granted  on  motion,  for  the  premium, 
against  the  purchaser,  from  one  who  had  declared  for 
insurance,  but  had  not  in  fact  been  insured,  or  received  a 
policy  because  of  non-payment  of  premium.  Greenhow 
V.  Bacton,  1  Munf.  Va.  590.     1810. 

§  2.  F.,  W.  &  M.,  being  trustees  and  directors  of  a 
fire  insurance  company,  executed  a  policy  to  indemnify  A. 
and  others  from  loss  by  fire,  whereby  they  "  ordered,  di- 
rected and  appointed  the  directors,"  for  the  time  being,  to 
pay  the  loss  which  A.  and  others  should  sustain  in  the 
event  of  a  fire  happening;  and  the  policy,  among  other 
clauses,  went  on  to  recite  certain  provisions  containing  the 
words,  "conditions  and  agreements,"  and  a  loss  having 
happened ;  Held,  that  the  policy  was  not  an  instiniment 
or  agreement  upon  which  covenant  would  lie,  and  conse- 
quently, that  neither  the  executing  parties,  nor  the  direct- 
ors for  the  time  being,  were  liable  at  law.  Alchoren  v. 
Saville,  6  J.  B.  Moore,  202  note  (17  E.  C.  L.  469).     1812. 

§  3.  By  a  pojicy  under  seal,  three  of  the  directors  of  a 
fire  company  admitted  the  plaintiff  to  be  a  member  of  that 
society,  upon  terms  and  conditions  prescribed  by  the  deed 
of  settlement  of  the  association ;  and  he  subscribed  a  cer- 
tain sum  as  the  consideration  money  for  one  year's  insur- 
ance, and  it  was  declared  that  he  should  be  entitled  to  a 
remuneration  out  of  the  society's  funds,  in  case  of  loss  by 
fire  happening  to  any  property  therein  specified,  not  ex- 
ceeding the  sum  set  opposite  each  article  respectively; 
and  it  was  further  stipulated  that  neither  of  the  directors 
who  signed  the  policy,  nor  the  plaintiff  or  the  holder  of 
it,  should,  as  members  of  the  society,  be  subject  or  liable 
to  any  demand  for  loss,  except  under  the  articles  establish- 
ing the  society,  and  as  was  provided  for  the  same.  The 
plaintiff  having  sustained  a  loss  by  fire,  declaration  that 
the  fimds  of  the  association  were  sufficient  to  satisfy  the 


I 


490 


PLEADING   AND    PRACTICE. 


amount  of  sucli  loss,  and  the  jury  found  a  .verdict  for 
him ;  Held^  that  such  declaration  was  sufficient,  and  that 
the  defendants  were  liable  by  the  terms  of  the  policy; 
and  the  court  therefore  refused  to  arrest  the  judgment. 
Andrews  v.  Ellison,  6  J.  B.  Moore,  199.  (17  E.  C.  L. 
468.)     1821. 

§  4.  Where  there  are  mixed  questions  of  law  and 
fact  presented  by  long  accounts,  the  i)ractice  in  New  York 
is  to  hear  the  cause  until  the  questions  of  law  are  dis- 
posed of,  and  then  send  the  accounts  to  referees  for  adjust- 
ment. Samble  v.  Mechanics'  Fire  Ins.  Co.  1  Hall,  N.  Y. 
660.     1829. 

§  5.  The  charter  of  company  prov^ided,  that  "  ir»  case 
any  person  insured  by  the  company  shall  sell,  and  convey, 
or  assign,  the  '  subject  insured,'  it  shall  be  lawful  for  such 
assured  to  assign  and  deliver  to  the  purchaser  such  policy, 
and  such  assignee  shall  have  all  the  benefit  of  such  policy, 
and  may  bring  a  suit  in  his  own  name ;  provided,  befoi*e 
any  loss  happens,  notice  shall  be  given  of  the  assignmont," 
<fec.  In  an  action  on  such  policy,  by  the  assignee;  Held^ 
that  an  averment,  that  the  plaintiff  "  was  interested  in  the 
buildings,"  and  that  oi-iginal  assured  had  transferred  ull 
his  right  and  interest  "  in  and  to  the  policy  of  insurance," 
was  not  sufficient — that  it  was  not  "  any  interest "  in  the 
subject  insured  which  authorized  the  assignment  of  the 
policy  and  the  right  of  action,  but  the  "whole  interest 
insured,"  and  that  the  plaintiff  having  failed  in  his  dec- 
laration to  show,  that  he  was  either  the  purchaser  or  as- 
signee of  the  "  8ul)ject  insured,"  could  not  maintain  the 
action.  Granger  v.  Howard  Ins.  Co.  5  Wend.  N.  Y.  200. 
1830. 

§  6.  Separate  actions  brought  against  several  under- 
•vvriters  on  same  policy.  Defendants  moved  to  consolidate 
the  cases,  so  that  one  trial  should  dispose  of  the  whole. 
The  court  refused  to  errant  the  motion,  against  the  con- 
sent of  plaintiff.  Doyle  v.  Anderson,  1  Adolph.  «fe  Ellis, 
635.  (28  E.  C.  L.  300.)  1834.  Consolidation  ordered 
in  a  similar  case.  Hollingsworth  v.  Broderick,  4  Adolph. 
&,  Ellis,  C46.     (31  E.  C.  L.  287.)     1836. 

§  7.    Plaintiff  alleged  that  "  his "  store  was  consumed 


i»LEADING  AND    PRACTICE. 


491 


rerdict  for 
,  and  that 
he  policy; 
judgment. 
J  E.  C.  L. 

P  law  and 
New  York 
,w  are  dis- 
I  for  adjust- 
lall,  N.  Y. 

at  "  in  case 
nd  convey, 
ill  for  such 
uch  policy, 
ucli  policy, 
led,  befoi'e 
signmout," 
nee;  Heklf 
sted  in  the 
sferred  uU 
insurance," 
st"  in  the 
ent  of  the 
le  interest 
in  his  dec- 
aser  or  as- 
lintain  the 
N.  Y.  200. 

eral  under- 
consolidate 
the  whole. 
it  the  con- 
h.  &  Ellis, 
on  ordered 
4  Adoiph. 

consumed 


hy  fire ;  Jleld,  that  though  this  was  not  a  technical  aver- 
ment that  he  was  the  owner,  yet  it  "'vas  sufficient  after 
verdict;  and  so  the  omission  to  allege  or  set  forth  the 
value  of  the  store  and  goods  at  the  time,  though  defective 
upon  special  demurrer,  was  sufficient  after  verdict.  Lane 
v.  Maine  Mut.  Fire  Ins.  Co.  12  Me.  44.     1835. 

§  8.  Under  the  averments,  that  the  goods,  to  the 
amount  mentioned  in  the  policy  of  insurance,  were  not 
lost ;  and  that  the  insurer  suspected,  and  had  reason  to 
suspect,  that  the  pretended  loss  was  altogether  fraudulent ; 
evidence  will  be  received  to  prove  that  the  plaintiff  had 
not  the  goods  when  the  loss  occurred,  and  that  it  was 
fraudulent.  Brugnot  v.  Louisiana  State  Marine  <fe  Fire 
Ins.  Co.  12  La.  326.     1838. 

§  9.  The  record  showed  that  the  plaintiff,  a  corpora- 
tion, appeared  by  attorney;  Held,  that  the  appearance 
was  sufficient.  If  a  statute  of  a  private  nature  contain  a 
clause  declaring  it  a  public  act,  it  will  be  noticed  by  the 
courts  as  a  public  act,  and  need  not  be  pleaded.  Brook- 
ville  Ins.  Co.  v.  Records,  5  Blackf  Ind.  170.     1839. 

§  10.  Suit  was  instituted  for  the  whole  amount  due 
on  a  policy  of  insurance,  which  the  company  had  paid 
and  settled,  but  done  with  a  view  to  try  a  feigned  case,  to 
see  if  the  company  were  not  entitled  to  retain  nine  hun- 
dred dollars  for  value  of  brick  taken  from  th*^  old  build- 
ing to  reconstruct  the  new  houses.  Held,  that  the  court 
could  not  entertain  or  act  on  a  feigned  case  or  suit,  even 
with  the  consent  of  the  parties.  Kohn  v.  Louisiana  Ins. 
Co.  15  La.  C  ,.     1840. 

§  11.  Defects  in  declaration,  such  as  may  be  taken 
advantage  of  ]>y  special  demurrer,  are  cured  by  a  trial 
and  verdict  on  the  merits.  Ins.  Co.  v.  Seitz,  4  \Vatts  & 
Serg.  Pa.  273.     1842. 

§  12.  Plea,  under  condition  that  all  fraud  and  false 
swearing  shall  cause  a  forfeiture,  &c.,  setting  up  fraud, 
<fec. ;  U^Id,  bad,  1st,  because  it  did  not  allege  that  the 
fraud  was  committed  by  plaintiff  or  any  party  in  interest ; 
2d,  because  it  did  not  allege  that  the  fraud  was  committed 
in  the  rendition  of  preliminary  proofs.  Ferris  v.  North 
American  Fire  Ins.  Co.  1  Hill,  N.  Y.  71.     1841. 


492 


PLEADING   AND    PRACTICE. 


§  13.  In  an  action  on  a  policy  of  insurance  against 
fire,  for  loss  or  damage  to  furniture  and  glassware,  where 
the  defence  charged  fraud  on  the  part  of  the  plaintiff,, 
and  the  judge  referred  the  cause,  to  have  the  amount  of 
loss  ascertained ;  Held^  that  in  a  case  involving  a  charge 
of  fraud,  the  assured  was  entitled  to  a  trial  before  a  court 
and  juiy ;  and  the  order  for  reference  was  vacated.  Levi 
V.  Brooklyn  Fire  Ins.  Co.  25  Wend.  N.  Y.  687.     1841. 

§  14.  In  an  action  on  a  policy  of  insurance,  an  alle- 
gation in  the  petition,  that  the  defendants  were  legally 
put  in  default,  will  be  siufficient,  without  expressly  alleg- 
ing a  compliance  in  detail  with  the  provisions  of  the 
policy,  where  such  compliance  is  proved  on  the  trial. 
Mason  v.  Louisiana  State  Marine  «fe  Fire  Ins.  Co.  1  Rob. 
La.  192.     1841. 

§  15.  In  an  action  on  afire  policy  the  defenders  plead 
that  the  insurance  was  fraudulently  eflpected  and  was  null. 
On  motion,  they  were  required  to  take  a  special  issue  as 
to  the  fraud,  or  withdraw  the  plea.  Campbell  v.  Aber- 
deen Fire  <fe  Life  Assurance  Co.  3  Case*?  in  the  Court  of 
Sessions,  N.  S.  1010.     1841. 

§  IC.  A  plea,  embodying  the  tenth  condition  of  the 
policy,  which  stated  that  after  the  fire,  to  wit,  on  the  26th 
of  August,  1845,  the  plaintiff  was  required  by  the  de- 
fendants to  deliver  an  account  in  writing  under  his  hand, 
verified  by  his  oath  and  by  his  books  of  account,  <fec.,  and 
pefrnit  extracts,  etc.,  to  be  taken  respecting  the  loss,  <fec., 
and  the  plaintiff  refused,  is  not  double,  as  they  all  go  to 
estal)lish  one  point — the  non-performance  by  tne  plamtiff 
of  that  part  of  the  tenth  condition.  A  traverse  in  a  plea 
that  the  plaintiff*  was  not  interested  in  the  goods  insured  to 
the  whole  amount  of  their  value  is  too  large ;  for  if  he  Avas 
interested  in  any  part,  lie  is  entitled  to  recover  j[>/'(?  tanto. 

To  a  declaration,  whicli  averred  performance  by  the 
plaintiff  of  all  the  acts  required  by  the  tenth  condition  to 
be  performed  by  him,  a  plea  traversing  the  performance 
of  all  these  acts  is  good  according  to  tlie  rules  of  pleading 
at  common  law.  A  plea  which  first  traverses  an  allega- 
tion in  the  declaration  of  the  delivering  of  loss,  acconling 
to  the  tenth  condition,  and  secondly,  sets  up  fraud,  is  un« 


.iii, 


PLEADING   AND    PRACTICE. 


493 


trial. 
Hob. 


«(■'. 


objectionable.  The  refusal  to  deliver  an  account  in  sucli 
case  is  indicatory  of  fraud,  and  is  consistent  with  the  gen- 
eral charge  of  fraud  subsequently  made.  Ketchum  v. 
Protection  Ins.  Co.  L  Allen,  N.  B.  136.     1848. 

§  17.  Plea,  that  the  insured  had  misrepresented  his 
title ;  for  that  he  derived  title  by  devise,  and  that  his  de- 
visor, at  time  of  receiving  his  deed  some  twenty  years  be- 
fore, had  the  same  day  executed  to  his  grantor  a  writing 
showing  the  conveyance  to  be  a  mortgage,  wherefor  said 
grantor  had  a  right  to  redeem,  and  the  insured  had  not  so 
represented,  although  the  charter  of  the  company  required 
a  true  statement  of  the  title,  encumbrance,  &c. ;  Held,  bad, 
because  the  contents  of  said  writing  were  not  stated,  nor 
the  facts  given,  from  which  the  court  might  draw  the  in- 
ference, whether  or  not  the  insured  had  only  a  mortgage 
title  at  the  date  of  the  policy.  Kentucky  &  Louisville 
Mut.  Ins.  Co.  v.  Southard,  8  B.  Monroe,  Ky.  634.     1848. 

8  18.  Plea,  that  a  room  in  a  dwellino'-house  had  been 
altered,  and  used  as  a  kitchen,  when  the  application  and 
survey  stated  that  the  kitchen  was  in  a  separate  building, 
fifteen  feet  off,  whereby  the  risk  was  increased  ;  Held,  bad, 
for  reason  stated  below  in  §  19,  and  also  because  of  un- 
certainty in  not  showing  whether  the  room  was  us6d  as  a 
kitchen  at  the  date  of  the  policy,  or  not  till  afterwards. 
Kentucky  &  Louisville  Mut.  Ins.  Co.  v.  Southard,  8  B. 
Monroe,  Ky.  634.     1848. 

§  19.  The  plea  of  a  misrepresentation  must  show,  not 
only  that  the  fact  misrepresented  increased  the  hp-^ard  of 
loss,  but  that,  according  to  the  rules  or  modes  of  business 
of  the  insurers,  it  would  have  enhanced  the  premium,  or 
prevented  the  insurance.  Kentucky  &  Louisville  Mut. 
Ins.  Co.  V.  Southard,  8  B.  Monroe,  Ky.  634.     1848. 

§  20.  Plea,  that  a  fire-place,  represented  to  be  secure, 
was  defective,  is  bad,  because  not  pointing  out  the  defect. 
Kentucky  &  Louisville  Mut.  Ins.  Co.  v.  Southard,  8  B. 
Monroe,  Ky.  634.     1848. 

§  21.    By  the  tenth  condition  attached  to  the  policy, 
it  was  stipulated  that  in  the  event  of  a  loss,  the  assured'" 
should  forthwith  give  notice  of  the  same  to  the  company, 


494 


PLEADING   AND    PRACTICE. 


and  as  soon  thereafter  as  possible  deliver  to  the  insurers  a 
particular  account  in  writing,  signed  with  his  own  hand, 
and  verified  by  oath  or  affirmation,  <fec.  The  declaration 
stated  the  fire  to  have  happened  on  the  29th  of  July,  1845, 
and  that  the  compliance  with  this  condition,  in  respect  of 
notice  of  the  fire,  took  place  on  the  same  day;  as  to  the 
delivery  of  a  particular  account  in  writing,  on  the  20th  of 
August,  1845  ;  and  in  respect  to  the  declaration  on  oath, 
the  27th  of  March,  1846;  Held,,  sufficient,  the  respective 
times  having  been  laid  under  a  videlicit;  the  performance 
of  these  acts,  whether  in  due  season  or  not,  being  matter 
of  evidence ;  Held  also,  that  the  proofs  required  by  the 
tenth  condition  might  be  waived,  and  being  a  question  of 
fact,  the  mode  of  waiver  need  not  be  stated.  Ketchum  v. 
Protection  Ins.  Co.  1  Allen,  N.  B.  136.     1848. 

§  22.  A  plea,  alleging  false  swearing  in  a  statement, 
annexed  to  the  declaration  of  loss  made  by  the  assured, 
Meld,  bad,  for  not  averring  that  any  such  statement  was 
annexed,  and  for  not  showing  when  and  before  whom  the 
oath  was  made,  or  in  what  particular  the  statement  was 
false.  Ketchum  v.  Protection  Ins.  Co.  1  Allen,  N.  B.  136. 
1848. 

§  23.  Unless  there  was  a  prayer  for  specific  instruc- 
tions, it  is  not  error  in  tlie  court  to  omit  to  draw  the  atten- 
tion of  the  jury  to  the  distinction  between  goods  covered 
by  the  policy,  and  those  not  included  therein,  which  have 
been  destroyed.  Klein  v.  Franklin  Ins.  Co.  13  Penn.  St. 
247.     1850. 

§  24.  An  averment  by  the  plaintiff,  that  camphene, 
&c.,  was  not  used  as  a  light  in  the  store  mentioned  m  the 
policjr,  or,  if  used,  that  premium  for  such  use  was  endorsed 
in  writing  on  the  policy,  is  not  necessary,  either  under  the 
old  rules  of  pleading,  or  the  new  code.  Hunt  v.  Hudson 
River  Fire  Ins.  Co.  2  Duer,  N.  Y.  481.     1853. 

§  25.  The  policy  required  notice  forthwith  in  case  of 
loss.  The  com])laint  averred,  "that,  as  soon  as  possible 
after  said  fire,  that  is  to  say,  on  the  24th  May  (the  fire 
having  occurred  on  20th  May),  the  jJaintifts  gave  notice 
of  the  same  to  the  defendants."    Ilehl,  that  under  this 


PLEADING   AND    PRACTICE. 


495 


averment  the  plaintiffs  might  show,  that  notice  was  given 
on  the  morning  after  the  fire.  Hovey  v.  American  Mut. 
Ins.  Co.  2  Duer,  N.  Y.  554.     1853. 

§  26.  A  plea  merely  alleging  that  the  property  was 
insured  in  another  office,  is  bad ;  the  particulars  of  the  al- 
leged insurance  should  be  stated.  Ramsay  Woolen  Cloth 
Manf.  Co.  v.  Mutual  Fire  Ins.  Co.  11  Upper  Canada,  Q.  B. 
516.     1853. 

§  27.  The  officers  of  insurance  companies  in  St.  Louis 
agreed  not  to  insure  for  the  plaintiff,  in  consequence  of 
which  agreement,  assured  sold  his  property  and  was  thrown 
out  of  business.  Held^  that  an  action  for  damages  against 
such  officers  could  not  be  maintained.  Hunt  v.  Simonds, 
19  Mo.  583.     1854. 

§  28.  In  an  action  on  a  policy  of  insurance,  no  defense 
can  be  introduced,  unless  it  is  set  up  in  the  answer.  New 
York  Central  Ins.  Co.  v.  National  Protection  Ins.  Co.  20 
Barb.  N.  Y.  ^v,3.     1854. 

§  29.  A  misrepresentation  by  the  assured,  not  speci- 
fied in  the  defendant's  answer,  cannot  be  relied  on  to  de- 
feat an  action  on  the  policy,  although  such  misrepresenta- 
tion is  first  disclosed  by  the  assured's  evidence.  Haskins 
v.  Hamilton  Mut.  Ins.  Co.  5  Gray,  Mass.  432.     1855. 

§  30.  A  defective  statement  of  a  good  cause,  cannot 
be  taken  advantage  of  by  a  motion  in  arrest  of  judgment, 
after  a  verdict.  New  Hampshire  Mut.  Fire  Ins.  Co.  v. 
Walker,  10  Fost.  N.  H.  324.     1855. 

§  31.  Where  the  declaration  set  out  promise,  in  con-  4 
sideration  of  acceptance  of  assignment  of  policy  by  com- 
pany; and  the  promise  proved,  recited  assignment  of 
policy  to  be  the  consideration;  Hdd^  that  there  was  a 
variance  between  the  proof  and  the  declaration.  General 
count  on  account  for  assessments,  sustained.  New  Hamp- 
shire Mut.  Ins.  Co.  V.  Hunt,  10  Fost.  N.  H.  219.     1855. 

§  32.  A  demurrer  to  the  whole  complaint  is  bad,  if 
one  of  the  plaintiffs  might  have  judgment  separately.  Pea- 
body  V.  Washington  County  Mut.  tns.  Co.  20  Barb.  N.  Y. 
339.     1855. 


v 

I 


1 


496 


PLEADING   AND    PEACTICE. 


§  33.  The  declaration  averred  that  "  the  defendants 
made  a  policy,  and  then  and  there  promised  the  plaintiffs 
to  insure,"  <fec.  Held,  that  the  pleading  set  fortn  a  con- 
tract of  insurance,  and  not  merely  an  agreement  for  a  con- 
tract.   Troy  Fire  Ins.  Co.  v.  Carpenter,  4  Wis.  20.     1855. 

§  34.  An  allegation,  that  there  was  no  insurance  not 
notified  to  the  company,  at  the  time  of  the  fire  nor  after 
the  making  of  the  policj,  is  equivalent  to  an  averment 
that  there  was  no  such  insurance  at  the  time  the  policy 
was  effected.  Troy  Fire  Ins.  Co.  v.  Carpenter,  4  Wis.  20. 
1855. 

§  35.  In  an  action  of  covenant  on  a  policy  of  insur- 
ance, the  conditions  of  which  provided  that  losses  should 
be  paid  in  sixty  days  after  proof  of  them,  and  that  no  suit 
should  be  maintained  unless  commenced  within  twelve 
months  next  after  the  "  cause  of  action  accrued,"  a  plea 
that  the  fire  took  place  more  than  twelve  months  before 
the  suit  commenced,  is  bad,  because  it  assumes  that  it  was 
necessary  to  sue  within  twelve  months  of  the  loss  happen- 
ing, while  the  language  of  the  policy  is,  that  the  suit  snail 
be  brought  within  twelve  months  next  after  the  cause  of 
action  shall  accrue.  Lampkin  v.  Western  Assui'ance  Co. 
13  Upper  Canada,  Q.  B.  361.     1855. 

§  36.  Plaintiff  is  requii'ed  to  set  forth  in  his  declara- 
tion only  such  provisions  of  the  policy  as  affect  his  right 
of  action.  Troy  File  Ins.  Co.  v.  Carpenter,  4  Wis.  20. 
1855. 

§  37.  Plaintiff'  need  not  anticipate  and  set  up  in  his 
declaration  objections  that  may  be  urged  by  defendants. 
Troy  Fire  Ins.  Co.  v.  Carpenter,  4  Wis.  20.     1855. 

§  38.  The  by-laws  of  a  company  need  not  be  set  out 
verbatim  in  the  declaration;  allegations  showing  a  sub- 
stantial compliance  therewith  are  sufficient.  Troy  Fire 
Ins.  Co.  V.  Cai-penter,  4  Wis.  20.     1855. 

§  39.  Where  the  reading  of  an  instrument  in  evidence 
is  objected  to,  on  the  ground  of  variance,  it  is  incumbent 
upon  the  party  objecting  to  specify  the  particular  matter 
of  variance.  Troy  Fire  Ins.  Co.  v.  Carpenter,  4  Wis.  20. 
1856. 


PLEADING   AND    PEACTICE. 


497 


jfendants 
plaintiffs 
!h  a  Con- 
or a  con- 
).     1855. 

•ance  not 
nor  after 
averment 
he  policy 
Wis.  20. 

of  insur- 
es should 
lat  no  suit 
in  twelve 
i,"  a  plea 
:hs  before 
that  it  was 
ss  happen- 
e  suit  shall 
e  cause  of 
u'ance  Co. 

lis  declara- 
it  his  right 
t  Wis.  20. 

t  up  in  his 
lefendants. 
55. 

be  set  out 
ing  a  sub- 
Troy  Fire 

in  evidence 
incumbent 

ular  matter 
4  Wis.  20. 


§  40.  The  act  of  incorporation  provided  that,  in  case 
an  assessment  should  not  be  paid  within  a  time  fixed  after 
notice  thereof  should  be  given,  suit  might  be  brought  for 
the  whole  amount  of  the  note.  This  action  was  brought 
for  the  whole  amount  of  the  note,  and  the  declaration  set 
forth  the  assessment  and  notice  thereof,  and  that  defendant 
"  has  refused  to  pay  said  assessment  or  any  part  thereof, 
and  the  time  limited  for  the  payment  thereof,  by  the  by- 
laws, has  long  since  elapsed ;  by  the  neglect  and  refusal  of 
said  assessment,  the  whole  amount  of  his  said  premium 
notes  has  become  due  and  payable  agreeably  to  the  pro- 
visions of  the  act  of  incorporation  of  said  company."  De- 
fendant objected  that  only  the  time  limited  by  the  by-laws 
was  alleged  to  have  elapsed,  which  might  be  less  than  the 
time  given  in  the  act  of  incorporation,  and  less,  therefore, 
than  he  was  entitled  to ;  Held^  that,  though  the  by-laws 
might  have  granted  a  longer  time  than  that  given  by  the 
charter,  it  was  not  to  be  presumed  that,  in  violation  of 
law,  they  would  prescribe  a  shorter  time,  antl  that  the  dec- 
laration was  sufficient,  and  judgment  should  be  rendered 
for  the  whole  amount  of  the  note.  Missouri  State  Mut. 
Fire  &  Marine  Ins.  Co.  v.  Spore,  23  Mo.  26.     1856. 

§  41.  It  is  not  an  error,  to  which  an  exception  will 
Jie,  that  the  judge  submits  the  very  question  in  issue  to 
the  juiy;  although  the  matter  of  defense  is  sworn  to  by 
one  witness,  and  h"e  is  not  contradicted;  a  verdict  for  the 
plaintiff  may,  in  such  case,  be  against  evidence,  but  the 
defendants  should  seek  relief  by  motion  for  a  new  trial, 
and  not  by  exceptions  and  appeal  from  judgment.  So  the 
defendants  might  have  required  suitable  instructions  re- 
garding the  force  and  effect  of  the  evidence.  Stettiner  v. 
Granite  Ins.  Co.  5  Duer,  N.  Y.  594.     1856. 

§  42.  To  declaration  that  the  directors  "  made,  agree- 
ably to  their  act  of  incorporation  and  by-laws,  an  assess- 
ment on  said  note,  together  with  other  second-class  policy 
notes  held  by  the  plaintiffs,"  defendant  answered,  denying 
that  any  such  assessment  had  been  made  as  was  set  forth 
in  the  plaintiff's  declaration.  Held^  that  this  denial  dis- 
tinctly put  in  issue  the  validity  of  the  assessment,  and  was 
in  substance  a  compliance  with  the  Massachusetts  statute 
83 


i: 


498 


PLEADING   AND   PRACTICE. 


of  1852,  c.  312,  §  14.    People's  Equitable  Marine  &  Fire 
Ins.  Co.  V.  Ai-tLur,  7  Gray,  Mass.  267.     1856. 

§  43.  In  an  action  of  covenant  against  an  insurance 
company  to  recover  an  insurance,  the  defendants  cannot 
show  on  tbe  trial  that,  at  the  time  the  insurance  was  ef- 
fected, the  insured  misrepresented  his  interest  in  the  prop- 
erty, unless  it  is  expressly  pleaded  that  such  misrepresent- 
ation was  made.  Sussex  County  Mut.  Ins.  Co.  v.  Woodruff, 
2  Dutch.  N.  J.  541.     1856. 

§  44.  Where  the  policy  provided  that  the  damages 
should  either  be  ascertained  and  paid,  or  the  building  re- 
storsd  to  its  fonner  condition ;  Held,  that  this  was  a  mere 
contract  of  indemnity  against  unliquidated  and  unascer- 
tained damages,  for  which  no  action  of  debt  could  be 
maintained,  whether  the  contract  were  by  deed  or  by  pa- 
rol ;  that  ])ringing  debt  on  such  a  contract  was  an  error 
in  a  matter  of  substance,  not  of  form,  and  that  advantage 
miffht  be  taken  of  it  upon  general  demurrer,  in  arrest  of 
judgment,  or  upon  writ  of  error.  Flanuagan  v.  Camden 
Mut.  Ins.  Co.  1  Dutch.  iN.  J.  506.     1856. 

§  45.  Where  a  declaration  averred  the  effecting  of  an 
insurance  on  *'  his "  three-story  and  attic  stone  building 
<fec.,  and  also  on  "  his  "  water-wheel,  and  on  a  frame  build- 
ing occupied  by  the  insured,  &c. ;  Jleld,  the  averment  of 
interest  was  sufficient.  The  statement  of  ownership  of 
property  was  plain  and  concise,  sucii  as  could  not  fail  to  be 
understood,  which  was  all  that  the  Code  of  Procedure  in 
New  York  required.  Fowler  v.  New  York  Indemnity  Ins. 
Co.  23  Barb.  N.  Y.  143.     1857. 

§  46.  A  plea  in  bar  to  an  action  on  policy,  that  an 
encumbrance  had  been  executed  on  the  premises  insured, 
against  the  provisions  of  the  policy  sued  on,  should  aver 
that  the  company  did  not  assent  and  agree  to  such  en- 
cumbrance: it  ueing  permissible  with  their  consent. 
Peoria  Maiine  &  Fire  Ins.  Co.  v.  Lewis,  18  111.  553.    1857. 

§  47.  If  it  is  objected,  that  an  assignment,  or  change 
of  interest  in  the  premises  insured,  was  executed  subse- 
quent to  the  policy,  want  of  consent  must  be  averred  in  a 
plea  to  an  action  on  the  policy;  or  it  will  be  presumed 


141 


w 


PLEADING   AND   PRACTICE. 


499 


&Fire 


asurance 
s  cannot 
e  was  ef« 
;he  prop- 
Bpresent- 
t'^oodruff, 

damages 
ilding  re- 
18  a  mere 
.  unascer- 
could  be 
or  by  pa- 
i  an  error 
idvantage 
arrest  of 
.  Camden 

iting  of  an 
building 
ime  build- 
erment  of 
lersbip  of 
fail  to  be 
3cedure  in 
mnity  Ins. 

?y,  that  an 
3s  insured, 
lould  aver 
3  sucli  en- 
consent. 
153.    1857. 


that  the  conditions  of  the  policy  have  been  complied 
with.  Peoria  Fire  &  Marine  Ins.  Co.  v.  Lewis,  18  111.  553. 
1857.  • 

§  48.  "VVliere  there  was  a  variance  between  the  policy, 
as  executed  and  signed,  and  the  policy  as  set  forth  m  the 
pleadings;  lAM,  that,  as  there  was  no  allegation  or  proof 
that  the  defendants  had  been  misled  or  prejudiced  by  it, 
it  must  be  deemed,  under  the  43d  section  of  the  act  of 
1855  (Nixon's  Digest,  G41),  in  New  Jersey,  immaterial. 
Halloek  v.  Commercial  Ins.  Co.  2  Dutch.  N.  J.  268.     1857. 

§  49.  If  the  declaration  allege  that  the  premium  note 
sued  on  is  of  a  certain  date,  and  it  proves  to  have  no  date, 
the  variance  is  fatal.  If  a  day  was  stated,  without  de- 
scribing the  note  as  dated  on  that  day,  it  would  not  be 
material.  A  variance  between  the  declaration  and  proof, 
as  to  the  time  when  the  assessment  was  made,  or  as  to  the 
time  when  payment  thereof  was  required  to  be  made,  is 
immaterial.  Atlantic  Mut.  Fire  Ins.  Co.  v.  Sanders,  36 
N.  H.  252.     1858. 

§  50.  Demurrer  to  declaration  on  premium  note,  set 
out  as  payable  to  the  company  or  their  treasurer.;  Held, 
that  this  was  not  a  promise  to  two  distinct  parties  in*  the 
alternative,  but  was  a  promise  to  the  company  to  pay 
them :  and  the  words  "  or  their  treasurer,"  merely  intro- 
duces a  stipidation  that  a  payment  to  the  treasurer 
shall  be  considered  as  made  to  them  so  as  to  fulfil  the 
contract.  Atlantic  Mut.  Fire  Ins.  Co.  v.  Young,  38  N,  H. 
451.     1859. 

§  51.  Reply  to  plea  of  breach  of  warranty,  alleging 
that  the  facts  constituting  the  breach  were  known  to  the 
company,  without  this  that  the  policy  was  made  upon  the 
warranty  of  insured  as  plead.  Rejoinder,  re-asserting 
warranty.  Held,  1st,  that  the  only  issue  presented  was  as 
to  the  knowledge  of  the  company,  and  that  evidence  of 
facts  to  show  the  breach  of  warranty  was  improper ;  2d, 
that  the  issue  of  knowledge  tendered,  was  no  answer  to 
the  plea,  as  the  terms  of  the  contract  must  govern,  and 
the  question  of  knowledge  Avas  immaterial.  State  Mut. 
Fire  Ins.  Co.  v.  Arthur,  30  Penn.  St.  315.     1858. 


500 


PLEADING  AND   PRACTICE. 


§  52.  Plea  of  change  of  occiipatioii,  whereby  the  risk 
had  been  increased  beyond  the  risk  as  described  in  the 
survey.  Ilej)ly,  denying  increase  of  risk.  Held,  that  the 
only  issue  presented  was,  whether  the  new  use  of  the 
property,  as  descril)ed  in  tlie  plea,  involved  greater  risk 
than  the  occupation  described  in  the  survey,  not  the 
actual  occupation  at  the  time  of  the  survey ;  and  that  the 
instruction  of  the  court  below  to  the  jury  to  determine 
what  was  the  risk  described  in  th'  survey,  and,  in  so 
doing,  they  might  inquire  whether  there  was  a  misde- 
scription, or  a  mutual  mistake  in  the  survey,  and  whether, 
therefore,  the  survey  should  be  reformed,  and  whether 
the  risk  as  actually  assured  was  increased,  was  wrong, 
because  no  such  issue  was  in  fact  presented,  and  because 
such  an  issue  would  be  improper  in  a  court  of  law.  State 
Mut.  Fire  Ins.  Co.  v.  Arthur,  30  Penn.  St.  315.     1858. 

§  53.  Where  the  premium  for  an  insurance  had  been 
paid,  and  an  agreement  for  insurance  made,  but  no  policy 
issued,  and  after  loss,  in  an  action,  a  declaration  stating 
that  the  defendants,  in  consideration  of  £20,  paid  to  them 
as  the  premium  of  insurance  of  £1,500,  on  ceiiain  prop- 
erty  described,  promised  to  insure  him  against  loss  or 
damage  by  fire  to  the  amount  of  £1,500,  until  notified  to 
the  contraiy,  sulgeet  to  the  conditions  of  the  policy — that 
is,  the  policy  usually  issued  by  the  defendants  in  like 
cases ;  that  the  property  was  destroyed  by  fire,  and  al- 
•though  the  i)laintift*  had  done  all  things  necessary  on  his 
part,  yet  defendants  had  not  paid  him  the  sum  insured,  is 
bad,  the  action  for  non-payment  of  the  money  not  being 
maintainable  without  a  i)olicy  under  defendant's  corporate 
seal.  It  seems,  however,  that  assured  might  have  remedy 
at  law  in  an  action  for  not  delivering  the  policy,  or  he 
might  be  relieved,  in  efjuity.  Jones  v.  Provincial  Ins.  Co. 
IG  Upper  Canada,  Q.  B.  477.     1858. 

§  54.  On  the  15th  Dec,  1855,  at  special  term,  an  or- 
der was  made  in  this  action  that  it  "be  referred  to  A.  I. 
Perry,  Esq.,  of  the  city  of  New  York,  as  a  sole  referee, 
only  to  ascertain  and  determine  the  amount  of  any  loss 
sustained  by  the  plaintiff^,  for  the  recovery  of  which  this 
action  is  brought."    In  August,  1850,  the  referee  made 


PLEADING   AND   PRACTICE. 


501 


the  risk 
I  in  the 
that  the 
;e  of  the 
iter  risk 
not  the 
that  the 
etermiue 
1(1,  in  so 
a  misde- 
whether, 
whether 
}  wrong, 
L  because 
T.  State 
1858. 

liad  been 
no  policy 
1  stating 
I  to  them 
lin  prop- 
t  his8  or 
stifled  to 
cy — that 
in  like 
and  al- 
y  on  his 
iisured,  is 
ot  being 
L'orporate 
e  remedy 


<^y 


or  he 


Ins.  Co. 


m,  an  or- 
t^  A.  I. 

e  referee, 
any  loss 

hich  this 

fee  made 


his  report,  finding  the  amount  of  loss  to  be  $401.74.  The 
cause  was  tried  in  Febniary,  1857.  Upon  the  trial,  the 
referee's  report  was  read  in  evidence,  together  with  the 
proofs  of  fire,  «fec.  The  jury  found  for  the  assured  the 
amount  reported  by  the  referee,  and  upon  their  verdict 
judgment  was  entered  in  Febniary  15th,  1857.  On  the 
20th  of  the  same  month  exceptions  were  filed  to  the  ref- 
eree's report ;  IleM,  that  on  an  appeal  from  judgment,  it 
was  not  correct  practice  to  review*  the  referee's  report. 
The  time  to  object  to  the  report  was  before  it  was  read  to 
the  jury ;  it  might  have  been  excepted  to,  and  reviewed 
on  special  motion.  Ehlen  v.  Rutgers  Fire  Ins.  Co.  2  Bosw. 
N.  Y.  482.     1858. 

§  55.  Declaration  on  a  policy  of  insurance  alleged 
that  it  was  "  subject  to  such  conditions  as  are  contained 
in  the  printed  proposals  issued  by  the  said  company,"  and 
that  the  plaintiff  had  kept  all  conditions  precedent  on  his 
part,  "  according  to  the  true  intent  and  meaning  of  the 
said  policy,  and  of  such  conditions  as  are  contained  in  the 
printed  proposals  issued  by  the  company."  Defendants 
pleaded  that  the  policy  was  "  subject  to  such  conditions 
as  are  printed  on  the  back  of  said  policy,"  and  that  among 
such  conditions  was  one  (setting  it  out)  which  the  plaint- 
iff had  broken.  The  plaintiff  demurred,  on  the  ground 
that  the  condition  pleaded  was  not  shown  to  be  contained 
in  the  printed  proposals ;  Held,  that  the  plea  was  good. 
Jacobs  v.  Equitable  Fire  Ins.  Co.  13  Upper  Canada,  Q.  B. 
373.     1859. 

§  56.  Wliere  the  contract  is  to  pay  such  portions  of 
the  premium  notes  and  at  such  times  as  the  directors  may 
require,  agreeably  to  the  act  of  incorporation  and  by-laws, 
in  an  action  for  assessments,  the  declaration  must  allege 
the  assessments  to  have  been  made  in  conformity  to  the 
act  and  by-laws.  Atlantic  Mut.  Fire  Ins.  Co.  v.  Young, 
38  N.  H.  451.     1859. 

§  57.  In  an  action  on  a  policy  of  insurance,  defend- 
ants pleaded  a  communication  opened  between  the  build- 
ing where  the  goods  insured  were  and  the  building  ad- 
joining, without  notice  to  them,  contrary  to  one  of  the  con- 
ditions of  the  policy.     At  the  trial  it  appeared  that  they 


T 


fl 

;' ! 

!'  i 

■'.  I 

I 

,'  I 


502 


PLEADING   AND   PRACTICE. 


had  misdescribed  the  alteration  on  which  thej  intended 
to  rely,  but  it  was  also  shown  that  such  alteration  had  not 
in  any  way  caused  or  contributed  to  the  lire;  Held,  that 
under  these  circumstances  an  amendment  of  the  plea  was 
properly  refuseti.  McKenzie  v.  Times  &  Beacon  Ins.  Co. 
17  tipper  Canada,  Q.  B.  226.     1859. 

§  58.  The  materiality  of  the  disclosure,  or  conceal- 
ment, of  the  nature  of  the  interest  or  title  of  the 
insured,  is  a  question  of  fact  which  must  be  submitted 
to  the  jury;  and  a  prayer,  omitting  to  do  so,  is  for  this 
reason  defective.  Franklin  Fire  Ins.  Co.  v.  Coates,  14  Md. 
285.     1859. 

§  59.  Where  policy  provided  for  "  payment  of  losses 
within  sixty  days  after  proof  and  adjustment,  and  reserved 
the  right  to  lebuild  or  repair  or  replace  personal  prop- 
erty," and  the  declaration  of  assured  averred  that  the 
money  had  not  been  paid  or  any  part  of  it,  but  failed 
to  aver  that  the  company  had  not  "  replaced  and  restored 
the  articles  lost,"  but  obtained  judgment  against  the 
insurer;  Held,  that  such  averment,  though  not  formal 
and  not  sufficient  on,  demurrer,  was  aided  after  verdict ; 
as  the  assured  could  not  I'ecover,  until  they  showed  the 
loss  of  the  property  and  a  breach  of  the  covenants  by  the 
insurers.  Howard  Fire  <fe  Marine  Ins.  Co.  v.  Cornick,  24 
111.  455.     1800. 

§  60.  The  Code  in  New  York  (§  173),  authorizes  the 
court,  after  jutlgment,  to  amend  any  j)leading,  process  or 
proceeding,  by  adding  or  striking  out  the  name  of  any 
party;  by  correcting  a  mistake  in  any  respect;  by  insert- 
ing other  allegations  material  to  the  case ;  or  conforming 
the  pleadings  or  prpcee(iings  to  the  facts  proved.  But 
after  final  judgment  dismissing  the  complaint  has  been 
duly  entered  and  rendered,  and  there  is  no  allegation  or 
pretense  of  any  mistake  or  omission  therein,  the  court  will 
not,  on  motion,  amend  such  judgment.  New  York  Ice  Co. 
V.  North  Western  Ins.  Co.  32  Barb.  N.  Y.  534.  1860. 
But  see  same  case,  post,  §  66. 

§  61.  A  bill  of  interpleader  held  to  lie  in  favor  of  an 
insurance  company  against  the  landlord  of  the  premises, 


-It 

i 


PLEADIKG  AND   PRACTICE. 


503 


intended 
n  liad  not 
hid,  that 
plea  was 
I  Ins.  Co. 


conceal- 
5  of  the 
ul)mitted 
\  for  this 
!S,  14  Md. 

of  losses 
I  reserved 
>nal  prop- 

tliat  the 
»ut  failed 
1  restored 
;ainst  the 
ot  formal 
r  verdict ; 
owed  the 
its  by  the 
oruiek,  2-i 


orizes  the 
)roce8s  or 
ne  of  any 

by  insert- 

onformin 

ved. 

has  been 
igation  or 

court  will 
)rk  Ice  Co. 
U.     1860. 


Bu"t 


iavor  of  an 
premises, 


which  have  been  burned  down  after  having  been  insured 
by  him  (and  who  brought  an  action  against  the  office  on 
the  policy),  and  against  the  tenant,  who  filed  a  bill  against 
the  landlord  and  the  office  for  a  specific  performance  of  an 
agreement  for  a  lease,  and  claiming  a  right  to  have  the 
money  laid  out  in  rebuilding  the  premises.  Paris  v.  Gil- 
ham.    Jones  V.  Paris.     Cooper's  Cli.  Cases,  56.     1813. 

§  62.  "Where  an  action  against  an  insurance  company 
was  tried  by  a  judge  without  a  jury,  and  the  judge  orally 
found  sufficient  evidence  of  the  title  of  the  assured,  but, 
in  afterwards  filing  his  written  finding,  did  not  distinctly 
pass  upon  it ;  Held,  that  the  fact  of  its  being  merely  a 
technical  point,  was  sufficient  to  prevent  a  reversal  of 
the  judgment  for  the  want  of  a  finding  iipon  all  the  issues. 
Hawkes  v.  Dodge  County  Mut.  Ins.  Co.  11  Wis.  188. 
1860. 

§  63.  "Where  tlie  declaration  alleged  that  the  articles 
insured  were  consumed  by  fire,  when  the  proof  showed 
that  thev  were  damaged  only ;  Held,  that  the  averment 
was  equivalent  to  an  averment  of  a  total  loss,  although 
the  proof  was  of  a  partal  loss — not  a  destruction  of  the 
articles  but  an  injury  to  them  caused  by  fire,  and  that,  in 
an  action  of  debt  upon  the  policy  of  insurance,  the  ass'ured 
might  recover  for  a  partial  loss  under  an  averment  of  a 
total  loss.  Peoria  Marine  &  Fire  Ins.  Co.  v.  Whitehill, 
25  111.  466.     1861. 

§  64.  "Where  an  assignee  after  loss,  brought  an  action 
on  a  policy,  and  the  company  set  up  for  answer,  1st,  a 
general  denial  of  all  allegations  in  the  petition,  and  2d, 
that  there  had  been  a  "  settlement  in  full,  by  payment 
and  receipt,  in  full  of  all  claim  or  demand  growing  out  of 
said  insurance  mentioned  in  plaintiff's  petition;  Held, 
that  the  company  could  not  introduce  in  evidence  a  judg- 
ment obtained  against  them  as  garnishees  of  the  assignor, 
though  they  had  no  notice  of  the  assignment  till  after  such 
judgment.  The  matter  of  such  garnishment  and  judgment 
could  not  come  iri  under  either  part  of  the  answer  as  it 
stood,  but  should  have  been  specially  pleaded.  "Walters 
V.  "Washington  Ins.  Co.  1  Iowa,  404.     1855. 

§  65.    In  an  action  On  a  policy  on  goods,  the  com- 


_^  i||  I  »iu>i^—^ppj 


<!':  ■ 


504 


PLEADING   AND   PRACTICE. 


plaint  set  forth  that  the  plaintiff  "  did  sustain  loss  to  the 
amount  of  $231.08,  by  reason  of  a  fire  taking  place  in  the 
cellar  of  the  said  premises  above  mentioned."  '  Held^  that 
the  complaint  was  insufficient,  because  it  alleged  a  de- 
struction by  fire,  not  of  the  goods,  insured,  but  of  the 
building  in  which  they  were  located.  Rodi  v.  Rutgers 
Fire  Ins.  Co.  6  Bosw.  N.  Y.  23.     1860. 

§  66.  The  complainant  brought  suit  to  correct  a  pol- 
icy and  enforce  its  collection.  The  court  having  overruled 
the  application  for  the  correction  of  the  policy,  complain- 
ant asked  leave  to  go  on  under  his  complaint,  and  try  the 
case  as  an  action  at  law  on  the  policy  as  it  stood.  But 
the  Supreme  Court  was  of  opinion,  that,  as  the  case,  as  a 
proceeding  for  equitable  relief,  had  been  dismissed,  there 
was  nothing  left  in  court,  and  ordered  the  whole  case  dis- 
missed without  prejudice.  Afterward,  the  complainant, 
finding  that  the  time  limited  in  the  policy  for  bringing  an 
action  had  elapsed,  on  motion,  had  the  order  amended  by 
entering  permission  to  file  a  new  complaint  at  law  in  the 
same  suit.  On  appeal  at  general  term  it  was  held,  that 
the  Supreme  Court  exceeded  its  authority  in  making  such 
amendment  of  its  former  judgment.  Finally,  in  the  Court 
of  Errors,  it  was  held,  1st,  that  if  a  case  was  left  on  the 
policy  as  it  stood,  after  overruling  the  application  to  cor- 
rect it,  the  Suj)reme  Court  should  have  proceeded  to  tiy 
it ;  2d,  that  the  Supreme  Court  had  discretionary  power 
.to  make  said  amendment  to  its  former  judgment,  and  that 
the  amendment  was  pro])erly  made:  and,  3d,  that  the 
Court  of  Errors  had  not  jurisdiction  on  appeal  to  review 
said  order  of  reversal  made  at  the  general  term  under  the 
provisions  of  the  Nt  /  York  statute.  New  York  lee  Co. 
V.  North  Western  Ins.  Co.  23  N.  Y.  357.  1861.  21  IIow. 
N.  Y.  296.  1861.  20  How.  N.  Y.  424.  1860.  10  Abb. 
Pr.  N.  Y.  34.     1860. 

§  67.  A  plea  setting  up  a  breach  of  wairanty  on  the 
part  of  the  insured  as  to  the  subject  insured,  is  not  suffi- 
cient, unless  it  cltarly  appears  in  wliat  particulars  the  sub- 
ject said  to  be  insured  \\'a8  dift'erent  from  what  it  actually 
was  represented  to  be  at  the  time  of  insurance ;  and  the 
rule  is  the  same  when  there  is  a  continuing  warranty  im- 
posed on  the  risk  by  the  terms  of  the  policy.    The  pre- 


(  !! 


;n  ill 


ii;^' 


PLEADING  il^D   PRACTICE. 


505 


is  to  the 
le  in  the 
eld,  that 
;d  a  de- 
b  of  the 
Rutgers 

ct  a  pol- 
reiTuled 
3mplain- 
L  try  the 
d.  But 
ase,  as  a 
id,  there 
case  dis- 
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igiiic^  an. 
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w  in  the 
eki,  that 
ing  such 
le  Couit 
't  on  the 
n  to  cor- 
d  to  tiy 
y  power 
md  that 
;hat  the 

review 
nder  the 

Ice  Co. 
n  IIow. 
10  Abb. 


Y  on  the 
lot  suffi- 
tlie  sub- 
actually 
and  the 
anty  im- 
The  pre- 


cise facts  must  be  alleged  upon  which  the  warranty  is 
claimed  to  arise,  and  for  the  occurrence  of  which  the  pol- 
icy is  claimed  to  be  avoided.  Merchants'  &  Manufacturers' 
Mut.  Ins.  Co.  V.  Washington  Mut.  Ins.  Co.  1  Handy,  Ohio, 
408.     1855. 

§  68.  Assumpsit  is  the  proper  remedy  on  an  agree- 
ment not  under  seal  for  additional  insurance,  endorsed  on 
a  policy.     Mutual  Ins.  Co.  v.  Deale,  18  Md.  26.     1861. 

§  69.  "Where  a  policy  issued  to  N.  S.  requires  in  the 
proofs  of  loss  a  certificate  from  the  nearest  nofcaiy,  and 
such  certificate  is  given  running  to  C.  S.,  and  so  described 
in  the  declaration,  it  is  a  fatal  objection  in  the  absence  of 
an  averment  and  proof  that  C.  S.  and  N.  S.  are  tlie  same 
person.  Great  Western  Ins.  Co.  v.  Staaden,  26  lU.  360. 
18C1. 

§  70.  A  complaint  in  an  action  upon  a  fire  policy,  in 
setting  forth  the  contract  of  insurance,  should  state  the 
conditions  contained  in  the  policy.  Bonner  v.  Home  Ins. 
Co.  13  Wis.  677.    1861. 

§  71.  In  a  declaration  on  a  policy,  the  insured  is  not 
bound  to  set  out  the  original  application ;  or  to  aver  or 
prove  the  truth  of  the  statements  therein  contained.  'Her- 
ron  V.  Peoria  Marine  &>  Fire  Ins.  Co.  28  111.  235.     1862. 

§  72.  Covenant  will  lie  upon  a  ^ene^yal  of  a  fire  in- 
surance policy,  which  provides  that  the  same  may  be  con- 
tinued in  force  upon  payment  of  premium  and  renewal 
receipt  given  therefor ;  although  such  renewal  receipt  is 
not  under  seal.  Herron  v.  Peoria  Marine  &  Fire  Ins.  Co. 
28  111.  235.     1862. 

§  73.  Where  the  person  with  whom  a  contract  of  in- 
surance was  made,  and  who  brings  an  action  upon  it,  has 
no  interest  in  the  property  which  would  authorize  or  ena- 
ble him  to  make  such  a  contract  himself,  he  is  bound  to 
state  affirmatively,  in  his  complaint,  that  he  acted  as  the 
agent  of  another,  whose  interest  was  suflicient  to  sustain 
such  a  contract.  Freeman  v.  Fulton  Fire  Ins.  Co.  38 
Barb.  N.  Y.  247.    1862. 

§  74.    In  an  action  upon  a  fire  insurance  policy  for 


506 


PLEADING  AND   PRACTICE. 


the  amount  of  a  loss,  the  complaint  must  allege  that  the 
plaintiff  had  an  interest  in  the  thing  insured  at  the  time 
of  the  loss ;  unless  the  claim  was  assigned  to  him  after- 
wards, or  unless  he  sues  as  trustee  of  an  express  trust. 
Freeman  v.  Fulton  Fire  Ins.  Co.  14  Abb.  Pr.  398.      1862. 

§  75.  In  an  action  against  an  insurer,  the  defendant 
not  being  presumed  to  know  what  prohibited  articles 
were  kept  by  the  plaintiff  when  the  loss  occurred,  is  not 
bound  to  specify  them  in  his  pleadings.  But  where  he 
specifies  some  without  alleging  that  any  others  were  kept, 
the  jury  should  not  be  permitted  to  consider  any  except 
those  specified.  Phoenix  Ins.  Co.  v.  Lawrence,  4  Mete. 
.  Ky.  9.     1862. 

§  76.  Where  the  declaration  recited  a  policy  made 
with  S.,  C,  M.  &  B.,  under  the  name  of  S.  and  others,  and 
the  policy  oft'ered  in  evidence  was  with  S.  and  others, 
without  mentioning  the  names  of  C,  M.  &  B.,  and  there 
was  evidence  tending  to  show  that  C,  M.  &  B.  were 
jointly  interested  with  S.  in  the  property  insured,  and 
were  the  persons  intended  by  the  term  "  others ;  "  Ileldj 
that  there  was  no  variance.  Sanders  v.  Hillsborough  Ins. 
Co.  44  N.  H.  238.     1862. 

§  77.  In  a  declaration  upon  a  policy  of  insurance 
■which  contains  a  condition  that  in  the  event  of  a  loss  the 
company  may  at  its  option  restore  the  building ;  it  is  not 
,  necessary  to  negative  the  performance  of  this  condition. 
It  is  a  condition  subse(juent,  and  to  be  taken  advantage  of 
by  way  of  defense,  -^tna  Ins.  Co.  v.  Phelps,  27  111.  71. 
1862. 

§  78.  In  Vermont,  the  amount  of  a  premium  note 
given  a  mutual  insurance  company  determines  the  ques- 
tion of  jurisdiction  of  particular  courts,  irrespective  of  the 
amount  of  the  assessments  thereon.  Windham  County 
Mut.  Fire  Ins.  Co.  v.  Pierce,  36  Vt.  16.     1863. 

§  79.  It  is  not  a  bar  to  a  recovery  on  a  policy  that 
the  declaration  averred  a  performance  of  all  conditions 
precedent,  and  the  proof  was  of  a  dispensation  with  and 
waiver  of  perfonnance.  Lycoming  County  Mut.  Ins.  Co. 
V.  Schollenljerger,  44  Penn.  St.  259.     1863. 

§  80.    An  allegation  in  an  action  on  an  insurance 


PLEADING   AND   PRACTICE. 


507 


that  the 
the  time 
im  after- 
3S  trust. 
1862. 

efendant 
.  articles 
id,  is  not 
vhere  he 
ere  kept, 
y  except 
4  Mete. 

cy  made 
hers,  and 
i  others, 
nd  there 
B.  were 
ired,  and 
;"  Held, 
)ugh  Ins. 

insurance 
I  loss  the 
it  is  not 
iondition. 
antage  of 
7  111.  71. 

iuni  note 
the  ques- 
i\^e  of  the 
1  County 

alicy  that 
loiKlitions 
with  and 
t.  Ins.  Co. 


insurance 


policy,  that  the  property  insured  was  damaged  by  fire,  is 
a  sufficient  averment  of  damage  by  fire,  sustained  by  the 
owner.  Keeler  v.  Niagara  Fire  Ins.  Co.  16  Wis.  523. 
1863. 

§  81.     An  averment  in  the  complaint  that  defendant 
"insured  the  plaintiff  to  the  amount  of  $3,000  on  ten 
thousand  bushels  of  oats,  <fec.,"  is  a  sufficient  allegation  of 
an  insurable  interest  in  the  plaintiff.     Rising  Sun  Ins.  Co. 
V.  Slaughter,  20  Ind.  520.     1863. 

§  82.  A  general  averment  in  a  petition  against  an  in- 
surance company,  that  the  defendants  were  authorized  to 
effect  insurance,  covers  fire  as  well  as  other  insurances.  A 
general  avennent  of  an  agreement  to  insure  authorizes 
proof  of  an  insurance  against  fire.  Western  Massachusetts 
Ins.  Co.  V.  Duffey,  2  Kansas,  347.     1864. 

§  83.  When  the  declaration  on  a  policy  of  insurance 
allee^es  due  notice  and  proof  of  the  loss,  according  to  the 
conclitions  of  the  policy,  and  the  specifications  of  defense 
do  not  deny  such  allegations,  the  plaintiffs  need  not  show 
that  they  had  notified  the  defendants  of  the  fire,  or  that 
they"  had  furnished  them  with  any  proofs  or  statements  of 
loss  or  damage,  verified  by  oath  or  affirmation,  as  required 
by  the  policy.  Fox  v.  Conway  Fire  Ins.  Co.  53  Me.  107. 
1865. 

§  84.  Where  a  policy  of  insurance  contained  a  clause 
that  if  the  assured  kept  gunpowder,  the  same  shall  be 
void,  and  the  complaint  averred  that  the  plaintiff  faith- 
fully complied  with  the  terms  of  the  policy,  and  the  an- 
swer did  not  deny  the  same,  nor  set  up  as  new  matter  the 
keeping  of  gunpowder ;  IleliJ.,  that  the  fact  that  gunpowder 
was  kept  could  not  be  insisted  on  as  a  defense.  Cassacia 
v.  Phoenix  Ins.  Co.  28  Cal.  628.     1865. 

§  85.  A  defense  of  fraud  to  an  action  on  a  policy  of 
insurance  must  be  specially  pleaded.  Flynn  v.  Merchants' 
Mut.  Ins.  Co.  17  La.  An.  135.     1865. 

§  86.  In  Pennsylvania,  debt  will  lie  on  a  policy  of 
insurance  renewed  by  a  parol  endorsement.  People's  Ins. 
Co.  V.  Spencer,  53  Penn.  St.  353.     1866. 


'i 


508 


PLEADING  AND   PRACTICE. 


§  87.  Declaration  on  a  policy  setting  out  facts  from 
which  it  may  be  inferred  that  the  insurance  was  for  the 
joint  benefit  of  plaintiff  and  another.  Ileld^  bad  for  not 
distinctly  averring  such  interest,  and  that  the  action  was 
brought  on  the  joint  account.  Dunlop  v.  ^tna  Ins.  Co. 
2  U.  C,  C.  P.  252.     1852. 

§  88.  To  be  entitled  to  a  verdict,  the  plaintiff  must 
satisfy  the  jury  that  the  contract  was  fairly  entered  into, 
that  he  has  performed  his  part  of  it,  that  he  had  at  the 
date  of  it  an  insurable  interest,  and  that  during  the  con- 
tract the  premises  were  injured  by  fire.  Smith  v.  Cash 
Ins.  Co.  1  Pittsburg  Rep.  428.     1858. 

§  89.  Interest  insured  jointly  by  two  cannot  be  given 
in  evidence  under  an  allegation  of  interest  solely  in  one. 
Stetson  V.  Ins.  Co.  3  Phila.  Rep.  380.     1859. 

§  90.  A  policy  on  a  house  and  on  personal  property 
in  it,  in  distinct  sums  and  at  separate  lates,  is  divisible ; 
and  a  breach  of  condition  as  to  encumbrances  on  the  house, 
does  not  avoid  the  insurance  on  the  jiersoiial  propei'ty. 
And  a  declaration  averring  generally  an  interest  in  the 
premises  and  stock,  and  a  loss  of  so  much,  is  to  be  consid- 
ered as  containing  two  counts,  and  as  referring  to  the 
whole  property,  and  is  therefore  a  sufficient  disclosure  of 
interest,  and  of  loss  as  to  the  stock,  as  to  \vhich  there  was 
no  avoidance  by  breach  of  condition  of  encumbrances. 
Date  V.  Gore  Distr.  Mut.  F.  Ins.  Co.  14  U.  C,  C.  P.  548. 
1S64. 

§  91.  Plea  that  plaintiff  never  gave  any  legal  notice 
of  loss  to  defendants,  will  not  require  the  plaintiff  to  show 
that  he  gave  the  "  particular  account "  of  such  loss,  the 
notice  of  loss  having  been  given.  Caston  v.  Monmouth 
M.  F.  Ins.  Co.  54  Me.  170.     1866. 

§  92.  Breach  of  warranty  and  misrepresentation,  as 
that  a  house  represented  to  T)e  brick  was  of  wood,  cannot 
be  proved  under  the  general  issue.  Pino  v.  Merchants' 
Mut.  Ins.  Co.  19  La.  An.  214.     1867. 

§  93.  Insured  declared  for  a  loss ;  plea  tha^  ^  :  iiad 
erected  an  engine,  increasing  the  risk  contraiy  to  the  pol- 
icy ;  replication  of  no  such  erection  as  averred.     Such  an 


I 


PLEADING  AND  PRACTICE. 


509 


!ts  from 

for  the 

for  not 

ion  was 

Ins.  Co. 

iff  must 
•ed  into, 
i  at  the 
the  con- 
V.  Cash 


)e  given 
in  one. 


)roperty 
[visible ; 
e  liouse, 
ropeiiy. 
;  in  the 
",  consid- 
to  the 
osure  of 
ere  was 
trances. 
P.  548. 

1  notice 
to  show 
OSS,  the 
iimouth 


tion,  as 

cannot 

I'chants' 


;he  poi- 
5uch  an 


issue  will  not  let  in  evidence  that  the  erection  did  not  add  to 
the  risk,  or  cause  the  fire,  or  was  waived  by  the  defendant. 
Diehl  V.  Adams  County  Mut.  F.  Ins.  Co.  58  Pa.  St.  443. 

1868. 

§  94.  Evidence  that  the  assured  was  agent  of  the 
company,  that  his  policy  had  been  canceled,  and  that  the  re- 
newal receipt  was  fraudulently  given  after  the  fire,  if  at  all, 
is  not  admissible  under  a  plea  of  the  general  issue.  Peoria 
M.  &  F.  Ins.  Co.  V.  Perkins,  16  Mich.'^  380.     1868. 

§  95.  A  denial  in  the  words  of  the  complaint  that 
the  property  was  all  destroyed  by  fire  on  a  specified  day, 
and  a  denial  of  the  allegation  that  proofs  of  loss  were 
filed  on  a  specified  day,  that  conditions  of  the  policy  were 
not  complied  with  "  as  stated  in  the  complaint,"  are  neg- 
atives pregnant  with  the  admission,  and  do  not  deny  that 
there  was  a  fire  some  other  day,  or  a  partial  loss  that  day, 
and  that  proofs  of  loss  were  filed  on  some  other  day. 
Schaetzel  v.  Germantown  Farmers'  Mut.  Ins.  Co.  22  Wis. 
412.     1868. 

§  96.  Policy  to  one,  loss  if  any  payable  to  F.,  is  an 
admission  that  F.  has  an  interest  in  the  contract,  and  was 
to  receive  the  benefit  of  it;  and  F.'s  declaration  on » the 
contract  is  not  demurrable,  as  not  showing  an  insurable 
interest.  Franklin  v.  National  Ins.  Co.  43  Mo.  491. 
1869. 

§  97.  Declaration  on  a  policy  avers  fulfilment  of  all 
conditions  of  the  policy.  The  answer,  among  other  things, 
sets  up  breach  of  the  provision  that  insured,  if  required, 
should  produce  his  books  of  account.  The  reply  said 
nothing  as  to  this  allegation.  Held,  that  a  denial  to  it 
was  not  included  in  the  general  allegation  of  performance 
in  the  declaration,  for,  being  a  matter  of  defense,  it  could 
only  be  brought  into  record  by  the  defendant.  And, 
further,  a  waiver  of  this  ground  of  defense  must  be  spe- 
cially pleaded.  Mueller  v.  Putnam  F.  Ins.  Co.  45  Mo.  84. 
1869. 

§  98.  Where  the  officers  of  a  mutual  insurance  com- 
pany, having  funds  in  their  hands,  neglected  to  pay  the 
judgment  in  favor  of  the  assured,  and  fraudulently  applied 


I 

i: 


510 


PLEADING   AND   PRACTICE. 


the  funds  to  other  purposes,  a  bill  in  equity  is  maintain- 
able against  them ;  but  as  the  company  is  also  liable  to 
the  payment,  it  also  must  be  made  party.  Lyman  v. 
Bonney,  101  Mass.  562.     1869. 

§  99.  Declaration  avers  a  contract  with  an  insurance 
company,  and  the  proof  is  of  a  contract  with  the  president 
and  directors.  Iield^  a  sufficient  avennent.  Ins.  Co.  of 
Noi-th  America  v.  McDowell,  50  111.  120.     1869. 

§  100.  The  Federal  Court  will  not  entertain  a  bill  in 
equity,  filed  by  a  company  after  loss,  to  cancel  the  policy, 
and  enjoin  the  bringing  of  an  action  at  law,  the  bill  being 
founded  on  charges  of  fraud  in  obtaining  the  policy,  which 
could  be  used  in  defense  at  an  action  at  law ;  and  there 
ca  ,jo  danger  of  injuiy,  through  delay  to  sue  by  the  as- 

si  '  ,  reason  of  a  limitation  of  time  of  suing  to  twtdve 

months  by  the  policy.  Home  Ins.  Co.  v.  Stanchfield,  2 
Abbott,  tr  S.  1.     1870. 

§  lul.  At  pl«intiff  on  the  trial  produces  the  policy, 
shows  the  loss,  the  delivery  of  proofs,  and  the  value  of 
the  property  destroyed,  he  makes  out  a  prima  facie  case. 
Geib  V.  International  Ins.  Co.  1  Dillon  C.  C.  443.     1870. 

§  102.  Suit  by  a  receiver  of  a  mutual  company  on  a 
premium  note,  the  complaint  need  not  be  accompanied  by 
a  transcript  of  the  decree  appointing  the  receiver  and 
jiiakiug  the  assessment.  Bolaud  v.  Whitman,  33  Ind.  64. 
1870. 

§  103.  As  a  waiver  or  estoppel  in  pais  maybe  shown 
in  a  suit  at  law,  in  reply  to  the  defense  of  a  breach  of  con- 
dition of  the  policy,  and  has  its  full  effect  in  the  suit  at 
law,  an  equity  court  cannot  enjoin  the  company  from  set- 
ting up  such  breach  as  a  defense,  on  the  groimd  of  waiver 
or  estoppel.  Couch  v.  City  F.  Ins.  Co.  37  Conn.  248. 
1870. 

§  104.  A  policy  being  signed  by  four  companies,  each 
to  be  liable  to  one-fourth,  one  action  can  with  their  con- 
sent be  brought  against  them  all ;  and  a  verdict  assessing 
the  whole  damages  against  them  all  is  good.  But  the 
judgment  should  be  rendered  for  one-fourth  the  amount 
against  each  separately,  with  9.  joint  judgment  for  costs ; 


PLEADING  AND   PRACTICE. 


511 


intain- 
able  to 
man  v. 


jurance 

•esident 

Co.  of 


bill  in 
policy, 
11  being 
,  which 
ad  there 
ythe  as- 
o  twelve 
hfield,  2 


le  policy, 
value  of 
ticie  case. 
1870. 

pany  on  a 
panied  by 
eiver  and 
3  Ind.  64. 

be  shown 
ich  of  con* 
the  suit  at 
J  from  set- 

of  waiver 
2-48. 


Donn. 


>anies,  each 
I  their  con- 
it  assessing 
.  But  the 
ihe  amount 
;  for  costs; 


but  a  joint  judgment  for  the  whol^  amount,  though  erro- 
neous, can  be  corrected  without  a  venire  de  novo.  Insur- 
ance Co.'s  V.  Boykin,  12  Wallace,  433.     1870. 

§  105.  An  allegation  that  plaintiff  complied  with  all 
the  conditions  of  the  policy,  and  that  more  than  thirty 
days  before  the  suit  he  gave  due  notice  and  proof  of  loss, 
which  was  received  by  the  company  as  sufficient,  will  sus- 
tain proof  of  a  waiver  of  the  proofs  not  being  given 
within  the  time  limited.  Dohn  v.  Farmers'  Joint  Stock 
Ins.  Co.  5  Lansing,  275.     1871. 

§  106.  Policy  says  loss  shall  be  paid  within  so  many 
days  after  due  notice  and  proof  of  loss.  The  plaintiff's 
case  is  not  made  out  without  showing  such  notice  and 
proof;  and  an  answer  denying  generally  every  allegation 
not  admitted,  is  a  sufficient  denial  of  the  proof.  Mitchell 
V.  Home  Ins.  Co.  32  Iowa,  421.     1871. 

§  107.  The  defendant  having  made  insinuations  that 
the  fire  was  fraudulent,  in  its  answer,  and  again  in  tes- 
tifying, which  were  wholly  unfounded,  such  scandalous 
matter  is  punished  by  withholding  costs,  though  defendant 
prevail  in  the  suit.  Mayhew  v.  Phoenix  Ins.  Co.  23  Mich, 
105.     1871. 

§  108.  An  allegation  in  the  declaration  of  perform- 
ance of  all  conditions,  does  not  let  in  defendant  under  a 
general  denial  to  show  increase  of  risk  by  defective  con- 
dition of  the  building ;  it  is  a  matter  of  defense,  and  must 
be  alleged  in  answer ;  nor  can  the  condition  of  the  whole 
building  be  shown  under  an  allegation  of  defective  roof. 
Newman  v.  Springfield  F.  &  M.  Ins.  Co.  17  Minn.  123. 
1871. 

§  109.  That  the  company's  rules  require  pleadings  to 
be  sent  to  the  home  office  for  examination,  is  no  ex- 
cuse for  a  default ;  and  where  the  company's  agents  have 
fully  examined  the  facts  relied  on  as  defense,  it  was  no 
error  to  refuse  a  motion  three  months  after  commencement 
of  suit  to  relieve  the  company  of  its  default.  Ins.  Co.  of 
North  Amer.  v.  Swineford,  28  Wis.  257.     1871. 

See  Change  of  Venue,  New  Trial,  Questions  for  Court  and  Jury,  also 
Agent,  §  71.    Assessments,  6,  G,  81,  74.    Assignment,  20, 25.    Bonds  of  Agents, 


■^ 


I 


512 


PEELmiNART    PROOFS. 


1.  Burden  of  Proof,  5.  Concealment,  23.  Conpummfttion  of  Contract,  11, 
Description  of  Property  Insured,  24.  Entirety  and  Divisibility  of  Policy,  1. 
Evidence,  50,  54.  Foreign  Insurance  Companies,  19,  30,  32,  42.  Fraud,  2, 
6,  7.  Garnisliment  or  Trustee  Process,  4.  Goods  in  Trust  or  on  Commis- 
sion, 17.  Increase  of  Risk,  7,  47.  Insurable  Interest,  3,  14,  31,  38,  51. 
Limitation  Clause,  2,  11,  17.  Mutual  Companies  and  Members,  24,  25,  28. 
Notice  of  Loss,  3,  13.  Other  Insurance,  74,  78,  79,  80.  Preliminary  Proofs, 
1,  13.  Premium  Notts,  21.  Premium  Notes  in  Advance,  0.  Reform  of 
Policy,  15.  Reaponsibility  of  Assignee  for  Acts  of  Assignor,  8.  Risk,  9. 
Stock  Notes  and  Subscriptions,  15.  Subrogation,  19.  Title,  11,  61.  Use 
and  Occupation,  7,  9,  51.    Waiver,  6,  8.    Wbo  may  Sue,  5, 13,  23. 


PRELIMINARY   PROOFS. 

§  1.  By  the  terms  of  the  policy,  the  assured  was  re- 
quired to  declare  on  oath,  "  whether  any,  and  what  other 
insurance  has  been  made  on  the  same  property."  The 
preliminary  proofs,  with  reference  to  this  matter,  stated, 
"  that  said  property,  or  any  part  thereof,  was  not,  nor  has 
been  insured,  since  the  policy  was  taken  out  from  the 
Protection  Insurance  Company."  Upon  the  trial,  the  dec- 
laration averred  that  the  statement  as  to  other  insurance, 
made  in  the  preliminary  proofs,  was  as  follows:  "that  no 
other  insurance  had  been  made  on  the  property  aforesaid." 
The  objection  set  up  was,  1st,  that  the  declaration  did 
.not  comport  with  the  statement  as  made  in  the  preliminary 
proofs ;  and,  2d,  that  neither  of  them  were  in  compliance 
with  the  condition  of  the  policy,  in  that  they  did  not  show 
that  no  prior  insurance  had  been  made,  lleld^  that  they 
were  sufficient.  Lounsbury  v.  Protection  Ins.  Co.  8  Conn. 
459.     1831. 

§  2.  Where  preliminary  proofs  were  made  out  in  time, 
and  handed  to  the  company,  and  assured  afterwards  re- 
quested permission  to  take  copies  of  them,  but  after  re- 
peated evasions  the  company  finally  refused  to  let  assured 
make  copies  of  them,  whereupon  assured  made  out  a  new 
set  and  gave  to  the  company  several  months  afterwards ; 
Held^  that  under  the  circumstances  they  were  furnished 
in  due  season.  Cornell  v.  Le  Roy,  9  Wend.  N.  Y.  1C3. 
1832. 


f    ! 


PRELIMINAKY    PROOFS. 


»13 


tract,  11. 
Policy,  1. 
Fraud,  2, 
Commis- 
l,  38,  51. 
54,  25,  28. 
ry  Proofs, 
Reform  of 

Risk,  9. 

61.    Use 


was  re- 
lat  other 
jr    The 
r,  stated, 
nor  has 
from  the 
.  the  dec- 
isurance, 
"  that  no 
bresaid." 
tion  did 
iminary 
mpliance 
lot  show 
lat  they 
8  Conn. 

t  in  time, 
kvards  re- 
after  re- 
t  assured 
ut  a  new 
erwards ; 
■urnished 
.  Y.  1C3. 


§  3.  The  insured  in  his  preliminary  proof?*  is  not  re- 
quired to  negative  the  exco[)tions  of  los^^es  from  design, 
invasion,  pul)lie  enemies,  risks,  etc.,  which  are  properly 
matters  of  <lefense.  C.atliu  v.  Springfield  Fire  Ins.  Co.  1 
Snnmer,  C.  C.  U.  S.  434.  Louasbury  v.  Protection  Ins.  Co. 
8  Conn.  450.     1831. 

§  4.  The  "particular  account  of  loss  and  damage," 
required  by  a  condition  of  the  policy,  refers  to  the  articles 
lost  and  damaged,  and  not  to  manner  or  cause  of  the  loss. 
Catlin  V.  Springfield  Fire  Ins.  Co.  1  Sumner,  C.  C.  U.  S. 
434.     1833. 

§  5.  "Where  policy  agreed  to  pay  any  loss  or  damage 
within  sixty  days  after  the  rendition  of  the  preliminary 
proofs ;  Ileld^  that  such  proofs  must  be  given  to  the  com- 
pany sixty  days  before  suit.  Harris  v.  Protection  Ins.  Co. 
1  Wright,  Ohio,  548.     1834. 

§  6.  It  is  necessary  for  assured  to  establish,  on  the 
trial,  his  interest  in  the  subject  insured;  but  he  need  not 
state  the  nature  of  his  interest,  in  the  affidavit,  which 
foi  ms  a  part  of  the  preliminary  proof,  there  being  nothing 
in  the  conditions  of  the  polic}^  requiring  him  so  to  do. 
Gilbert  v.  North  American  Ins.  Co.  23  Wend.  N.  Y.  43. 
1840. 

§  7.  Where,  .in  a  policy  of  $1,000  on  building,  and 
$300  on  goods,  requiring  the  usual  "])articular  account 
of  loss  and  damage,"  the  assured  made  a  "general  state- 
ment," that  the  value  of  his  goods  at  time  of  fii'e  \vas 
$1,495,  without  any  specification  because  of  the  loss  of 
books  and  accounts;  Hehl^  that  this  clause  requiring  an 
account  of  loss  must  be  liberally  construed  in  favor  of  the 
assured,  and  that  the  statement  was,  therefore,  under  the 
circumstances,  sufficient.  McLauirhlin  v.  Washington 
County  Ins.  Co.  23  Wend.  N.  Y.  bio.     1840. 

§  8.  Where  company  after  a  loss  declined  to  pay  "  be- 
cause assured  had  taken  a  subsequent  insurance  without 
notice,  and  had  in  other  ways  acted  unfairly,"  and  nothing 
further  was  said ;  Held,  that  they  had  thereby  waived  the 
production  of  preliminary  proof  Charleston  Ins.  &  Trust 
Co.  V.  Neve,  2  McMullen,  S.  C.  237.     1842. 

88 


in 


!     ■:     i 


1; ; 


Si'' 


III'' 


i } 


.}' 


r     'I 
li      i 


I'M 
1^1    i 


514 


pbeliminahy  proofs. 


§  0.  \YlierG  one  of  the  conditions  of  a  policy  against 
fire,  require  as  a  part  of  the  preliminary  proof  without 
which  no  recovery  can  Le  had,  a  declaration  under  oath, 
"  whether  any,  and  what,  other  insurance  has  been  made 
on  the  same  property,"  the  insured  will  forfeit  his  right 
to  recover  by  faihng  to  comply  with  this  condition.  Bat- 
taille  V.  Merchants'  Ins.  Co.  of  N.  O.,  3  Rob.  La.  384. 
1843. 

§  10.  Where  notice  of  loss  is  given  immediately,  a 
delay  of  nineteen  days,  from  the  date  of  the  fire,  in  pre- 
sentmg  preliminary  proof,  is  not  unreasonable.  Wight- 
man  V.  Western  Marine  &  Fire  Ins.  Co.  8  Rob.  La.  442. 
1844. 

§  11.  Where  policy  stipulated  that  the  loss  should 
not  be  payable  until  the  assured  had  given  notice  of  the 
loss,  furnished  an  account  thereof,  <fec.,  and  the  court,  as- 
suming that  these  stipulations  of  the  policy  had  been  com- 
plied with,  instructed  the  jury,  that  the  plaintiff  was  en- 
titled to  recover ;  Held,  that  the  court  erred,  as  these  were 
questions  for  the  jury.  Franklin  Fire  Ins.  Co.  v.  Hamill, 
6  Gill,  Md.  87.     1847. 

§  12.  The  provisions  in  this  policy  as  to  notice  and 
proof  of  loss,  were  very  general,  being  as  follows :  "  and  in 
case  of  loss  the  same  is  to  be  paid  in  ninety  days  after 
proof  thereof,"  and  the  company  shall  have  the  right  to 
replace,  <fec.  After  loss  assured  wrote  a  letter  stating  that 
he  had  sustained  damage  by  fire,  under  policy  No.  8G50, 
and  requesting  that  he  should  be  indemnified  according  to 
the  terms  of  the  policy ;  no  olyection  being  made  at  the 
time  by  the  insurer,  or  further  particulars  called  for;  Held, 
that  they  could  not  be  taken  as  an  oljjection  to  assured's 
right  to  recover,  upon  tlie  trial.  Heath  v.  Franklin  Ins. 
Co.  1  Cush.  Mass.  257.     1848. 

§  13.  Formal  defects  in  the  preliminary  proofs  of  loss, 
may  be  regarded  as  waived  by  the  insurers  placing  their 
refusal  to  pay  on  other  grounds;  and  evidence  of  such 
waiver  may  be  given  under  an  averment  of  performance. 
St.  Louis  Ins.  Co.  v.  Kyle,  11  Mo.  278.     1848. 

§  14.     Where  an  attempt  was  made  by  assured  to  com- 


» '1 


I 


jr  against 
without 
:ler  oath, 
sen  made 
his  right 
)n.  Bat- 
La.  384. 

liately,  a 

3,  in  pre- 

Wight- 

I.  La.  442. 

3S  should 
ice  of  the 
court,  as- 
aeen  cora- 
T  was  en- 
bese  were 
T.  Hamill, 

lotice  and 

"  and  in 

ays  after 

right  to 

ting  that 

No.  8C50, 

ording  to 

e  at  the 

Dr;  Held, 

assured's 

klin  Ins. 


's  of  loss, 
ting  their 
of  such 
ormance. 


d  to  coni- 


PRELIMINART     PROOFS. 


515 


., 


ply  with  the  contract  of  insurance,  in  reference  to  prelim- 
inary proofs,  and  afterwards  the  company,  without  notify- 
ing assured  that  his  affidavit  was  insufficient,  made  an 
examination  and  pursued  the  inquiry  to  satisfy  themselves, 
taking  other  affidavits,  and  placing  them  in  the  hands  of 
their  agent ;  Held^  that  the  finding  of  the  jury  that  this 
was  a  substantial  compliance  with  the  terms  of  the  con- 
tract, would  not  be  set  aside.  Sexton  v.  Montgomery 
County  Mut.  Ins.  Co.  9  Barb.  N.  Y.  191.     1848. 

§  15.  A  refusal  to  pay  the  loss  because  no  obligation 
to  insure  was  ever  entered  into,  the  contract  being  incom- 
plete at  the  time  of  the  loss,  operates  as  a  waiver  of  the 
necessity  for  the  pioduction  of  the  preliminary  proofs  re- 
quired by  the  condition  of  the  policy.  Tayloe  v.  Mer- 
chants' Ins.  Co.  9  How.  U.  S.  390.     1850. 

§  16.  The  authenticity  of  papers,  offered  as  evidence 
that  the  proper  preliminary  proof  was  given  to  the  com- 
pany, is  a  queption  for  the  jury  ;  therefore  it  is  no  ground 
of  exception  that  the  court  permitted  ex  parte  affidavits 
to  be  read  to  the  jury,  as  evidence  that  preliminary  proof 
had  been  given.  Klein  v.  Franklin  Ins.  Co.  13  Penu.  St. 
247.     1850. 

§  17.  If  insurer  refuse  to  pay  a  loss  because  assured 
refused  to  submit  to  an  examination  under  oath,  as  re- 
quired by  the  policy,  they  cannot  afterwards  object  to  his 
failure  to  comply  with  other  requisitions  of  the  policy  as 
to  mode  of  proof.  Phillips  v.  Protection  Ins.  Co.  14  Mo. 
220.     1851. 

§  18.  If  companies  decline  to  pay  loss  for  other  reasons 
than  defects  in  notice  or  proofs,  they  will  be  held  to  have 
waived  the  right  to  a  more  particular  notice.  Hartford 
Protection  Ins.  Co.  v.  Harmer,  2  Ohio  State  (22  Ohio),  452. 
1853. 

§  19.  Compliance  with  a  stipulation  requiring  the  in- 
sured to  deliver  full  particulars  of  the  loss  within  three 
months,  is  a  condition  precedent  to  the  right  of  assured  to 
recover  for  the  loss.  Mason  v.  Harvey,  8  Wei.  Hurl.  & 
Gord.  Exch.  819.     1853. 

§  20.    Where   the   assured,  from  loss  of  books  and 


516 


PRELmiNARY    PROOFS. 


I  I 


*!■ 


vouchers,  could  not  furnish  the  "  paiiicular  account "  re- 
quired by  conditions  of  the  policy,  a  statement  of  the 
gross  amount  lost,  and  circumstances  of  the  loss,  under 
oath,  was  held  sufficient.  Norton  v.  Rensselaer  &  Sara- 
toga Ins.  Co.  7  Cow.  N.  Y.  G45.  1827.  Bumstead  v.  Divi- 
dend Mut.  Ins.  Co.  2  Kern.  N.  Y.  81.     1854. 

§  21.  Where  the  conditions  of  a  policy  require  '  ",t 
assured  should  state  in  his  preliminary  proofs  "the  ...lUe 
of  the  property  lost  and  the  nature  and  value  of  his  inter- 
est therein,"  and  until  this  was  done  the  loss  would  not 
be  payable ;  Jlelil,  that  the  rendition  of  such  an  account 
■was  an  essential  prerequisite  to  the  ri^ht  of  recovery ;  and 
a  statement  that  the  pi'opertv  was  entirely  destroyed,  and 
a  valuation  given  in  the  on_^inal  application  was  not  '» 
compliance  with  the  condition.  Wellcome  v.  People's 
Equitable  Mut.  Fire  Ins.  Co.  2  Gray,  Mass.  480.     1854. 

§  22.  When  asked,  "what  further  proof  of  loss  was 
required  ?"  the  president  answered,  "  the  policy  will  show 
that."  Held,  that  this  answer  "was  not  a  tacit  admission 
that  there  was  no  objection  taken  to  any  defect  in  tV  pre- 
liminary ])roof  that  had  been  furnished,  nor  a  wf  of 
such  proof.  Spring  Garden  Mut.  Ins.  Co.  v.  Evans,  v  x*ld. 
1.     1856. 

§  23.  Where  assured  had  served  several  papers  on  the 
company,  and,  upon  the  trial,  gave  them  notice  to  produce 
'  such  papers,  which  the  company  refused  to  do,  giving  no 
reason  or  excuse  for  such  non-production  ;  Held,  that  the 
jury  were  not  thereby  authorized  to  presume  or  find  that 
such  papers  contained  the  preliminary  proof  of  the  assured 
required  by  the  9th  condition  of  the  policy,  and  that  such 
failure  or  refusal  was  not  a  circumstance  from  which  the  jury 
could  legally  presume  that  such  papers  contained  the  proof. 

In  the  absence  of  evidence  to  show  that  the  preliminary 
proof  required  by  the  policy  had  been  furnished,  or  that 
there  had  been  a  waiver  on  part  of  the  company  of  its 
production;  Held,  that  the  assured  could  not  recover. 
Spring  Garden  Mut.  Ins.  Co.  v.  Evans,  9  Md.  1.     1856. 

§  24.  When  preliminary  proofs,  furnished  in  good 
faith,  are  in  any  respect  defective,  common  fairness  requires 
that  such  defect  be  suggested,  and  that  it  be  not  held  in 


J'M 


PRELDIINARY    PROOFS. 


517 


imt"  re- 
t  of  the 
8,  under 
<fe  Sara- 
.  V.  Divi- 

ire  '  '-t 
;he  .  ..I lie 
liis  iiiter- 
ould  not 
,  account 
ery ;  and 
>yed,  and 
as  not  •' 

Peoi)le's 

1854. 

loss  was 
^ill  show 
idniission 
a  tV  ire- 
wi  of 
us,  \) 


Ad. 


ers  on  the 
o  produce 
giving  no 

that  the 
find  that 
le  assured 
that  such 
lithe  jury 
the  proof, 
•eliminary 
id,  or  that 
any  of  its 

recover. 

1856. 

.  in  good 
js  requires 
ot  held  in 


reserve,  to  be  used  afterwards  to  olitain  further  delay  of 
payment,  or  to  defeat  a  suit  brought  for  the  money. 
Peacock  v.  New  York  Life  Ins.  Co.  1  Bosw.  N.  Y.  338. 
1857. 

§  25.  The  affidavit  of  loss  made  by  insured  estops 
him  to  deny  in  a  subsequent  suit  on  the  policy,  any  mate- 
rial facts  therein  stated.  Irving  v.  Excelsior  Fire  Ins.  Co. 
1  Bosw.  N.  Y.  507.     1857. 

§  26.  Assured's  house  was  destroyed  August  2, 1854, 
and  on  the  8th  of  same  month,  through  his  attorneys,  he 
notified  the  company  of  his  loss,  informing  them  at  the 
same  time  of  the  loss  of  his  policy,  and  requesting  them 
to  send  a  copy  of  the  record  of  the  policy,  with  the  neces- 
sary directions  as  to  proper  mode  of  verifying  his  loss,  the 
expense  of  which  he  ofl:ered  to  pay.  On  the  10th  of  Au- 
gust, the  treasurer  of  the  company  acknowledged  receipt  of 
the  notice,  and  informed  him  that  his  claim  would  be  laid 
before  the  executive  committee  for  action,  and  on  the  15th 
of  August,  again  wrote,  informing  him  that  his  claim  had 
been  rejected,  for  the  reason  that  the  policy  had  been  can- 
celed for  non-payment  of  assessments.  I/eld,  that  this 
action  of  the  company  was  a  waiver  of  any  right  of  the 
company  to  insist  upon  any  particular  form  of  notice,  or 
kind  of  proof.  Noyes  v.  Washington  County  Mut.  Ins. 
Co.  30  Vt.  659.  .  1858. 

§  27.  The  refusal  of  an  agent  of  an  insurance  company 
to  pay  the  amount  of  the  loss,  upon  the  ground  that  they 
were  "  not  upon  the  risk,"  is  a  waiver  of  the  preliminary 
proof  required  by  the  policy.  Franklin  Fire  Ins.  Co.  v. 
Coates,  14  Md.  285.     Ib59. 

§  28.  Where  a  party  becomes  a  member  of  a  mutual 
insurance  company  by  taking  out  a  policy,  he  thereby  as- 
sents to  and  becomes  bound  by  the  by-laws  then  in  force, 
and  one  of  these  requiring  that  a  particular  account  on 
oath  of  the  circumstances  of  a  loss  should  be  given  forth- 
with to  the  company,  no  action  can  be  sustained  for  such 
loss,  without  furnisfiing  such  account  within  a  reasonable 
time,  although  this  provision  is  not  embodied  in  the  pol- 
icy. Woodfin  v.  Asheville  Mut.  Ins.  Co.  6  Jones  Law,  N. 
C.  558.     1859. 


518 


PRELIMINA.RY     PROOFS. 


1 

!P   li 


'    li 


§  29.  "Where  one  of  the  by-laws  of  a  mutual  insurance 
company  required  that  the  insured,  within  thirty  days 
after  the  loss  by  fire,  should  give  notice  to  the  company, 
specifying  the  amount  of  the  loss,  the  manner  of  it,  and 
other  particulars,  as  a  condition  to  his  right  to  recover ; 
Held^  that  a  general  declaration  to  the  insured  by  a  travel- 
ing agent  of  the  company,  that  "  the  matter  would  be  all 
right  with  the  company,"  was  not  a  waiver  of  the  neces- 
sity of  such  notice.  Boyle  v.  North  Carolina  Mut.  Ins. 
Co.  7  Jones  Law,  K  C.  373.     1860. 

§  30.  Policy  required  that  in  case  of  loss,  the  assured 
should  state  in  his  notice  of  loss  and  affidavit,  "  the  value 
of  such  parts  as  remain."  The  notice  sent  by  assured 
stated  that  the  building  was  destroyed  on  a  certain  day, 
and  was  a  "  total  loss.  The  building  was  valued  at 
$2,500,  and  insured  for  $1,500,  and  the  value  of  the  brick 
and  stone  work,  unconsumed  by  the  fire,  was  $108.75. 
Held^  that  the  notice  of  loss  given  was  sufficient,  and  espe- 
cially so,  not  having  been  objected  to  on  account  of  failure 
to  state  the  value  of  materials  left,  or  a  more  particular 
statement  required.  Wyman  v.  People's  Equity  Ins.  Co. 
1  Allen,  Mass.  301.     1861. 

§  31.  Where  policy  required  the  assured  within  thirty 
days  after  a  loss  to  file  a  particular  statement  of  such  loss, 
the  value  of  the  property  insured,  <fec.,  and  unless  such 
statement  was  filed  withm  thirty  clays,  the  loss  would  not 
be  payable,  and  no  notice  of  the  loss  was  ffiven  until 
nearly  a  year  and  a  half  after  the  fii'e.  Ileld^  that  by  the 
tenns  of  the  contract,  the  loss  was  not  payable.  And  the 
facts  that  an  agent  only  authorized  to  receive  and  forward 
applications,  resided  within  one  hundred  feet  of  the  in- 
sured property,  and  knew  of  the  fii  e ;  that  one  of  the 
plaintiffs  saw  the  prasident  of  the  company,  long  after  the 
fire,  and  told  him  the  reason  why  notice  and  proof  of  loss 
had  been  omitted ;  and  the  president  replied  that  the 
company  would  be  disposed  to  do  what  was  right,  that 
they  knew  at  the  time  of  the  fire  that  it  was  their  loss, 
and  were  surprised  that  they  were  not  notified,  and  asked 
him  to  go  before  the  directors ;  that  he  went  before  the 
dii'ectors,  and  afterwards,  at  their  request,  sent  them  a 


PRELIMINAEY     PROOFS. 


519 


insurance 
lirty  days 
company, 
of  it,  and 
0  recover ; 
y  a  travel- 
uld  be  all 
the  neces- 
Mut.  Ins. 


be  assured 
'  the  value 
•y  assuied 
jrtain  day, 
valued  at 
•  the  brick 
3  $108.75. 
f  and  espe- 
of  failure 
particular 
}y  Ins.  Co. 

thin  thirty 
such  loss, 
iless  such 
would  not 
iven  until 
at  by  the 

And  the 
d  forward 
of  the  in- 
»ne  of  the 

after  the 
►of  of  loss 

that  the 
ight,  that 
their  loss, 
md  asked 
)efore  the 
t  them  a 


statement  of  tlie  loss ;  that  they  had  several  meetings  on 
the  subject,  and  finally  declined  to  pay  the  loss,  notifying 
the  plaintiffs  of  such  determination ;  are  not  sufficient  evi- 
dence of  a  waiver  of  the  provisions  of  the  by-laws,  with 
reference  to  proofs  and  notice  of  loss.  Smith  v.  Haverhill 
Mut.  Fire  Ins.  Co.  1  Allen,  Mass.  297.    1861. 

§  32.  Where  the  policy  required  the  production  of 
certain  preliminary  prooi's,  and  the  proofs  furnished  were 
defective ;  Held,  that  the  mere  reception  of  the  proofs  in 
silence  did  not  amount  to  a  waiver,  and  that  the  fact  that 
the  company  did  not  object  to  the  proofs,  and  gave  to  the 
insured  no  notice  of  any  deficiencies,  and  made  no  request 
for  further  particulars,  only  amouix+ed  to  receiving  them 
in  silence,  from  which  the  jury  were  not  authorized  to  in- 
fer a  waiver.  To  make  a  case  of  waiver,  silence  and  some- 
thing more  is  required ;  and  that  something  must  be  more 
than  simply  equivalent  to  silence.  Keenan  v.  Missouri 
State  Mut.  Ins.  Co.  and  Ryder  v.  Same — Supreme  Court  of 
Iowa,  June  Term,  1861. 

§  33.  Where  condition  of  policy  required  certain  pre- 
liminary proofs,  and  at  time  of  their  presentation  to  the 
company  the  latter  made  no  objection  to  them,  but  placed 
their  refusal  to  pay  the  loss  on  the  ground  of  fraud  on  the 
part  of  the  assured.  Held,  that  the  company  had  thereby 
waived  any  defects  in  such  proofs.     Peoria  Marine  &  Fire 

Ins.  Co.  V.  Whitehill,  25  111.  466.     1861. 

« 

§  34.  Under  a  condition  in  a  policy  requiring  that 
"  all  persons  insured  and  sustaining  loss  by  fire  shall  forth- 
with give  notice  to  the  company,"  and  as  soon  thereafter 
as  possible  "deliver  a  particular  account  of  such  loss, 
signed  with  their  own  hands,  and  verified  by  oath  or  af- 
firmation," a  waiver  by  an  a^ent  of  the  company  of  the 
notice  of  loss,  does  not  include  a  waiver  of  the  particular 
account  or  proof  required  to  be  furnished.  Desilver  v. 
State  Mut.  Ins.  Co.  38  Penn.  St.  130.     1861. 

§  35.  Among  the  conditions  attached  to  a  policy  of 
insurance  were  the  following:  All  persons  sustaining 
damage  by  fire  were  forthwith  to  give  notice  to  the  com- 
pany, and  within  forty  days  they  were  to  "  deliver  in  a 


520 


PRZLDIINARY    PROOFS. 


particular  account"  of  sucli  loss  or  damage.  Losses  were 
payable  by  the  company  within  three  months,  <fec.  Then 
followed  this  clause :  "  All  communications  and  notices  to 
the  company  must  be  post-paid,  and  directed  to  the  secre- 
taiy,  at  C.  The  statement  of  the  loss  was  made  out, 
sworn  to,  and  deposited  in  the  post-office,  addressed  to 
the  secretary  of  the  company  at  C,  but  was  never  received 
by  the  company.  HeM.,  that  the  condition  requiring  the 
assured  to  "  deliver  in"  the  statement  of  loss,  was  a  posi- 
tive requirement  of  the  policy  on  that  particular  subject, 
not  superseded  or  nullified  by  the  general  direction  to  for- 
ward communications  and  notices  by  mail,  and  that  in 
sending  such  statement  by  mail,  the  insured  had  not  com- 
plied with  the  condition.  Hodgkins  v.  Montgomeiy 
County  Mut.  Ins.  Co.  New  York,  S.  C.  General  Term,  5tli 
District,  1861.  American  Law  Register,  Febiniary,  1802, 
Philadelphia. 

§  36.  If,  after  the  preliminary  proofs  of  a  loss  by  fire 
under  a  policy  of  insurance,  the  officers  of  an  insurance 
company  visit  the  premises  and  converse  with  the  insured, 
and  make  no  reference  to  the  preliminary  proofs,  or  raise 
any  objection  to  them,  while  any  defect  therein  may  be 
remedied,  and  refuse  to  pay  on  other  and  distinct  grounds, 
the  insurance  company  will  be  estopped  to  set  up  any  de- 
fect in  the  ])reliminary  proof,  although  the  conditions 
made  part  of  the  policy  give  exj)licit  directions  about 
proofs  of  loss,  and  the  policy  provides  that  no  condition, 
stipulation,  covenant  or  clause  in  the  policy  shall  be  al- 
tered, annulled  or  waived,  excei)t  by  writing  indorsed  on 
or  annexed  to  the  policy  and  signed  by  the  president  or 
secretary.  Blake  v.  Exchange  Mut.  Ins.  Co.  12  Gray, 
Mass.  265.     1858. 

§  37.  Proofs  of  loss,  as  required  by  the  policy,  must 
be  furnished  before  an  action  for  a  loss  can  be  maintained. 
Roper  v.  Lendon,  1  Ell.  <fc  Ell.  2  B.  825  (102  Eng.  C.  L.) 
1859. 

§  38.  Where  preliniinaiy  notice  and  proofs  are  re- 
•ceived  and  retained  by  the  insuier  without  objection,  and 
without  notifying  the  insured  of  a  formal  defect  therein, 
the  insurer  must  be  deemed  to  have  waived  all  objection 


PEELIMINAEY    PROOFS. 


521 


on  account  of  such  defect.     Great  Western  Ins.  Co.  v. 
Staaden,  26  111.  300.     1861. 

§  39.  Preliminary  proofs  of  loss,  though  a  condition 
precedent  to  the  right  of  the  insured  to  recover,  may  be 
waived  by  the  insurer.  Commonwealth  Ins.  Co.  v.  Sen- 
nett,  41  Penn.  St.  161.     1861. 

§  40.  Where  a  claimant,  having  presented  proofs  of 
loss  that  were  clearly  defective,  and  which  were  objected 
to  by  the  insurers,  and  subsequently  served  perfect  proofs, 
notifying  the  insurers  that  they  were  intended  as  of  the 
time  of  the  delivery  of  the  former  proofs,  and  merely  to 
obviate  any  technical  objections;  Held^  that  an  action 
brought  at  a  due  period  after  the  service  of  the  defective 
proofs,  but  immediately  after  the  delivery  of  the  second 
proofs,  was  prematurely  brought.  Kimball  v.  Hamilton 
Fire  Ins.  Co.  8  Bosw.  N.  Y.  495.     1861. 

§  41.  A  policy  of  insurance  provided  that  the  insured, 
on  sustaining  loss  by  fire,  should  give  notice  to  the  com- 
pany, or  its  agents,  make  oath  concerning  the  value  of  the 
property  insured,  the  interest  of  the  insured,  and  other 
particulars  usually  stipulated  for  in  such  policies.  A  cer- 
tificate was  to  be  furnished,  signed  by  a  magistrate,  of  the 
good  faith,  tfec,  of  the  insured.  A  loss  occurring,  the  lo- 
cal agent  of  the  company  was  notified,  verbally,  immedi- 
ately after  the  fire,  and  he  suggested  delay  until  the  arrival 
of  the  adjusting  agent.  Shortly  after,  this  agent  arrived, 
and  made  an  examination  of  the  books  and  accounts  of  the 
insured,  expressed  himself  satisfied  and  took  the  aflidavits 
of  the  parties.  He  told  them  that  no  more  was  required 
of  them,  but  that  he  would  present  the  claim  to  the  com- 

f)any.  The  company  afterwards  addressed  a  letter  to  the 
ocal  agent,  in  which  they  based  their  refusal  to  pay  the 
claim  upon  the  sole  ground  that  gunpowder  was  kept  in 
the  building,  and  make  no  olijection  to  the  sufficiency  of 
the  preliminary  proofs.  Held^  that  by  these  acts  the  com- 
pany waived  the  provisions  of  the  policy  before  stated, 
rhtenix  Ins.  Co.  v.  Taylor,  5  Minn.  492.     1861. 

§  42.  By  the  conditions  and  stipulations  attached  to 
a  policy  of  insurance,  and  subject  to  which  it  was  issued 


522 


PRELIMmARY    PROOFS. 


.    I:  S. 


i'.     - 


and  receiv^ed,  tbe  insured,  upon  sustaining  damage  by  fire, 
was  forthwith  to  give  notice  to  the  company,  and  withia 
forty  days  to  "deliver  in  a  particular  account"  of  such 
loss  or  damage.  The  policy  contained  a  further  clause 
that  "  all  communications  and  notices  to  the  company  must 
be  post-paid  and  directed  to  the  secretary  at  C."  The 
statement  of  a  loss  was  made  out,  sworn  to,  and  deposited 
in  the  post-office,  inclosed  in  a  sealed  envelope,  postage 

Eaid,  and  addressed  to  the  secretary  of  the  company  at  0., 
ut  was  never  received  by  the  company.  Heldf  tliat  the 
condition  requiring  the  insured  to  "  deliver  in  "  the  state- 
ment of  loss  within  forty  days  was  a  positive  requirement 
of  the  policy  on  that  particular  subject,  which  could  not 
be  deemed  superseded  or  nullified  by  the  general  direction 
to  forward  communications  and  notices  by  mail ;  and  that 
in  sending  such  statement  by  mail,  the  insured  had  not 
complied  with  the  conditions  of  the  policy.'  Hodgkins  v. 
Montgomery  County  Mut.  Ins.  Co.  34  Barb.  N.  Y.  213. 
1861. 

§  43.  Where  a  policy  required  the  insured  to  furnish 
a  certificate  of  the  loss,  &c.  from  the  nearest  notary  pub- 
lic ;  and  the  insured  furnished  a  proper  certificate  from  a 
notary,  but  not  the  nearest  one,  which  was  received  by 
the  agent  and  retained  by  the  company  without  objection 
until  the  trial ;  IIel(i,  the  agent  having  promised  to  pay 
the  loss,  that  the  defect  in  the  certificate  was  waived. 
Byrne  v.  Rising  Sun  Ins.  Co.  20  Ind.  103.     1863. 

§  44.  The  failure  of  the  insured  to  specify  any  of  the 
goods  insured,  "with  particularity,"  as  required  by  the 
policy,  in  their  proofs  of  loss,  if  caused  by  their  inability  to 
ao  so  in  consequence  of  the  total  destruction  of  such  goods, 
does  not  preclude  them  from  recovering  therefor.  Hoff- 
man  v.  ^tna  Fire  Ins.  Co.  1  Robert.  N.  Y.  501.  1863 ; 
8.  c.  19  Abb.  Pr.  325;  aflirmed  32  N.  Y.  405. 

§  45.  A  coal  breaker  was  insured  under  a  valued 
policy ;  immediately  after  its  destruction  by  fire,  the  in- 
sured wrote  to  the  company,  stating  that  his  "  coal  breaker 
burnt  down  this  morning,  giving  the  number  of  his  pol- 
icy, and  the  amount  of  his  msurance ;  Held,  that  such  a 
statement  of  loss,  though  in  the  preliminary  notices,  was 


i 


PKELIMrN"ARY  PROOFS. 


523 


;e  by  fire, 
id  within 
'  of  such 
er  clause 
any  must 
0."  The 
ieposited 
,  postage 
my  at  C., 
that  the 
he  state- 
uirement 
;ould  not 
direction 
and  that 

had  not 
Igkins  V. 

Y.  213. 

0  furnish 
ary  pub- 
j  from  a 
jived  by 
objection 

1  to  pay 
waived. 

ly  of  the 
by  the 
ibility  to 
h  goods, 
Hoff. 
1863; 


r. 


valued 

the  in- 

breaker 

his  pol- 

such  a 


P 


■1 


substantially  a  particular  statement,  and  a  compliance 
with  the  condition  requiring  it.    Lycoming  County  Mut. 
ns.  Co.  V.  SchoUenberger,  44  Penn.  St.  259.     1863. 

§  46.  If  the  underwriter  intends  to  insist  upon  de- 
fects in  the  proof,  he  must  liotify  the  insured  of  that  in- 
tention in  time  to  afford  him  an  opportunity  to  correct 
them.  Conditions  precedent  are  waived  by  such  conduct 
on  the  part  of  the  party  entitled  to  insist  upon  them  as  is 
inconsistent  with  the  purpose  to  require  the  performance 
of  them.  And  contracts  of  insurance  constitute  no  ex- 
ception to  the  rule.  Post  v.  ^tna  Ins.  Co.  43  Barb.  N". 
Y.  351.     1864. 

§  47.  If  the  directors  neither  make  objection  to  the 
notice  and  proofs,  nor  ask  for  any  further  information  in 
this  respect,  but  base  their  objections  upon  the  ground  of 
over-valuation,  and  refer  the  matter  to  their  secretary  for 
adjustment,  who  offers  to  pay  a  certain  amount,  but  less 
than  the  whole ;  the  company  thereby  waives  any  defect 
in  the  notice  or  preliminary  proofs.  Lewis  v.  Monmouth 
Mut.  Fire  Ins.  Co.  52  Me.  492.     1864. 

§  48.  A  policy  of  insurance  was  not  payable  till 
ninety  days  after  due  notice  and  proof  of  loss,  in  conform- 
ity to  the  conditions  thereto  annexed.  The  notice  and 
proof  of  loss  which  was  furnished  to  the  insurers,  in  com- 
pliance with  a  requirement  in  the  conditions  that  such 
notice  should  show  in  what  manner  the  building  was  occu- 
pied, stated  that  it  was  occupied  as  a  hotel.  It  appeared 
in  proof  that  no  license  had  been  given  to  keep  it  as  a 
hotel.  A  memorandum  of  special  hazards  annexed  to  the 
policy  prohibited  all  unlawful  business.  Held^  that  an 
action  could  not  be  maintained  upon  the  policy.  Camp- 
bell V.  Charter  Oak  Fire  <&  Marine  Ins.  Co.  10  Allen, 
Mass.  213.     1865. 

§  49.  If  an  incorrect  statement  of  a  material  matter 
has  been  made  through  mistake  in  a  notice  and  proof  of 
loss  which  were  furnished  to  insurers,  in  compliance  with 
a  requirement  in  the  conditions  of  insurance  annexed  to  a 
policy,  and  no  amended  statement  has  been  furnished  to 
the  insurers  before  the  trial  of  an  action  upon  the"  policy, 


524 


PRELIMINARY    PROOFS. 


:'i     V. 


the  insured  cannot  be  allowed  to  prove  the  mistake,  and 
show  that  the  facts  were  not?  as  therein  stated.  Campbell 
V.  Charter  Oak  Fire  &  Marine  Ins.  Co.  10  Allen,  Mass. 
213.     1865. 

§  50.  Where  a  policy  of  insurance  against  fire  pro- 
vided that  in  case  of  loss  the  assured  should  give  imme- 
diate notice,  and  as  soon  as  possible  render  under  oath  a 
particular  account  of  such  loss,  "  stating  whether  any  and 
what  other  insurance  had  been  made  on  the  property, 
giving  copies  of  the  written  portions  of  all  policies  there- 
on ; "  Held,  that  the  furnishing  of  such  copies  was  a  con- 
dition precedent,  without  the  performance  of  which  (if 
not  waived  by  the  company)  no  recovery  could  be  had  on 
the  policy ;  and  that  the  inability  of  the  assured  to  give 
such  copies  on  account  of  the  loss  of  the  policy  afforded 
no  excuse.  Blakeley  v.  Phoenix  Ins.  Co.  20  Wis.  205. 
1866. 

§  51.  By  a  condition  in  a  policy,  the  insured  were 
bound,  in  case  of  loss,  to  give  to  the  secretary  a  particular 
account  of  such  loss  or  damage.  An  account  was  sent  to 
the  secretary,  setting  out  the  names  of  the  partners,  che 
number  of  their  policy  and  amount  insured  therein,  the 
value  of  their  stock  in  the  store,  as  estimated  from  their 
books,  reciting  insurances  in  two  companies,  and  giving 
an  account  of  an  entire  undivided  loss,  but  without  stat- 
ing the  amount  of  the  loss  or  damage  upon  the  policy  of 
the  defendant,  nor  that  the  loss  was  upon  goods  insured 
under  that  policy,  nor  in  what  way  that  loss  was  ascer- 
tained. Held,  not  such  a  particular  account  of  the  loss 
and  damage  as  was  required  by  the  policy.  Lycoming 
County  Ins.  Co.  v.  Updegraff,  40  Penn.  St.  311.     1861. 

§  52.  The  court  below  allowed  a  copy  of  the  prelim- 
inary proof  of  lose  to  be  received  in  evidence  on  the  trial, 
instead  of  requiring  the  production  of  the  original.  The 
local  agent  of  the  company  havir  g  testified,  without  ob- 
jection, that  he  received  notice  of  the  fire,  and  made  out 
the  proof  of  loss  himself;  Held,  that  this  was  sufficient 
evidence  that  the  preliminary  proof  had  been  received  by 
the  agent  of  the  company,  and  that,  as  the  insurance  com- 
pimy  did  not  object  at  the  time  to  the  sufficiency  of  such 


PREIJMEXARY    PROOFS. 


525 


preliminary  proof,  it  waived  all  objections  to  its  sufficiency. 
Warner  V.  Peoria  Marine  &  Fire  Ins.  Co.  14  Wis.  318. 
1863. 

§  53.  An  agreement  by  assured,  by  wliich  a  third 
party,  not  interested  in  the  mill  insured,  was  to  share  as 
partner  in  the  business  therein,  does  not  vitiate  the  insur- 
ance, nor  disentitle  the  plaintiff  assured  from  recovering 
for  the  whole  loss,  though  the  plaintiff,  in  his  notice  of  loss, 
by  mistake  represented  such  third  person  as  owning  half 
the  insured  mill,  nor  is  he  estopped  by  the  mistake  from 
showing  the  truth  as  to  his  sole  ownership.  Rice  v.  Pro- 
vincial Ins.  Co.  7  U.  C,  C.  P.  548.     1858. 

§  54.  A  by-law  declared  the  loss  should  not  be  pay- 
able, unless  the  assured  delivered  a  particular  account,  in 
writing,  stating  the  value  of  the  property  lost  and  of  that 
saved.  Ileldj  a  claim  for  a  total  loss,  stating  the  value,  is 
a  substantial  compliance,  although  some  of  the  property 
was  saved  without  assured's  knowledge.  Harkins  v. 
Quincy  Mut.  Fire  Ins.  Co.  16  Gray,  591.     1860. 

§  55.  The  proposing  an  arbitration  (which  did  not 
take  place)  to  settle  the  amount  of  the  loss ;  Heldy  no  evi- 
dence of  a  waiver  of  the  condition  requiring  proofs  of  loss 
to  be  sent  mthin  thirty  days,  the  secretary  having  previ- 
ously told  assured  that  he  had  no  power  to  waive.  Niagara 
Dist.  Mut.  Fire -Ins.  .Co.  v.  Lewis,  12  U.  C,  C.  P.  123. 
1662. 

§  56.  Plea,  breach  of  condition  requiring  the  prelim- 
inary proofs  to  state  what  other  insurance  there  is  on  the 
premises.  Replication  that  there  was  no  other  insurance 
thereon.  If  the  plea  had  been  correctly  drawn,  this  repli- 
fation  would  have  been  demurrable,  because  replying  now 
that  there  was  no  other  insurance,  is  no  compliance  with  a 
condition  requiring  that  fact  to  be  made  under  oath  before 
the  commencement  of  the  suit.  Williamson  v.  Niagara 
Dist.  Mut.  Fire  Ins.  Co.  14  U.  C,  C.  P.  15.     1863. 

§  57.  The  plaintiff's  affidavit,  stating  generally  the 
value  of  the  goods  saved  and  lost;  a  certificate  of  the 
nearest  magistrate,  as  to  his  inquiry  into  and  belief  of  the 
fire  being  accidental ;  and  of  two  merchants ;  and  a  book 


526 


PBEUMINABT    PROOFS. 


I     ly 


■», 


containing  a  statement  of  the  goods  lost,  made  partly  from 
invoices  and  partly  from  recollection,  but  not  verified  by 
his  account  books  or  other  vouchers,  or  by  his  affidavit,  is 
not  a  "  particular  account  of  the  loss  signed  by  his  own 
hand,  verified  by  his  oath  and  by  his  booKS  of  account  and 
other  vouchers.  Greaves  v.  Niagara  Dist.  Mut.  Fire  Ins. 
Co.  25  U.  C,  Q.  B.  127.     1865. 

§  58.  Nor  is  plaintiflT's  statement  that  the  property 
consisting  of  general  merchandize  in  his  store  was  totally 
destroyed,  as  were  also  his  books  of  account,  invoices  and 
papers,  and  that  the  value,  as  near  as  ascertainable,  is 
$3,000.  Affidavit  attached.  The  evidence,  at  trial,  show- 
ing he  had  the  means  of  giving  a  more  particular  account, 
is  no  ftilfilment  of  the  condition,  which  must  be  so  con- 
strued as  to  require  enough  information  to  enable  the  com- 
pany to  form  a  judgment.  Banting  v.  Niagara  Dist.  Mut. 
Fire  Ass.  Co.  25  U.  C,  Q.  B.  431.     1866. 

§  59.  A  condition  that  any  loss  shall  be  paid  in  three 
months  after  due  notice  and  proof  made  "  in  conformity  to 
the  by-laws  annexed,  and  that  such  proof  shall  further 
contain  a  certified  copy  of  the  written  portion  of  the 
policy ; "  Held^  such  certified  copy  is  not  made  a  condition 
precedent  to  recovery,  and  a  plea  denying  that  such  notice 
was  furnished  is  demurrable.  Richardson  v.  Canada  West. 
Farmers'  M.  &  S.  Ins.  Co.  16  U.  C,  C.  P.  430.     1866. 

§  60.  Plaintiflf's  affidavit,  stating  the  occupancy  of 
the  premises,  the  whole  value  of  the  goods  destroyed, 
without  any  particulars,  and  attaching  some  accounts  of 
goods  sold  to  him,  showing,  however,  only  the  charges  of 
"  goods  per  invoice,"  not  showing  which  were  burnt  and 
which  not,  is  not  "a  particular  account  signed  with  hip 
own  hand,  verified  by  his  oath,  also,  if  required,  by  his 
books  of  account  and  other  proper  vouchers."  Mulvey  v. 
Goro  Dist.  Mut.  Fire  Ass.  25  U.  C,  Q.  B.  424.     1866. 

§  61.  The  notice  of  loss  was  required  to  be  given 
fortliwith,  and  as  soon  thereafter  as  possible  the  prelimin- 
aiy  proofs,  and  assured  was  to  submit  to  an  examination, 
if  required.  The  loss  occurred  June  20th,  1861,  the  as- 
sured being  and  continuing  absent  on  account  of  his  health. 


PEELmiNART    PROOFS. 


527 


On  July  12tb,  1861,  plaintiff,  a  creditor  of  assured,  began 
suit  against  him,  attaching  the  company.  Defense,  no  no- 
tice nor  proof  of  loss.  The  plaintiff  filed  the  assured's  de« 
position  in  Februair,  1867,  in  the  case.  Held,  the  claim- 
ant is  not  held  to  these  requirements  with  technical  strict- 
ness, either  as  to  time  or  manner.  That  although  assured 
has  not  taken  the  steps  to  render  his  claim  payable,  it  is 
nevertheless  a  valuable  right  attachable  by  his  creditor, 
and  if  assured  fails  to  .furnish  the  preliminary  evidence, 
the  creditor  may  do  so  by  taking  the  testimony  of  assured 
and  others ;  that,  under  the  circumstances,  the  dej)ositions 
of  the  assured  and  others  may  be  taken  as  preliminary 
proofs  in  this  case,  and  the  plaintiff's  rights  are  preserved. 
Northwestern  Ins.  Co.  v.  Atkins,  3  Bush.  328.     1867. 

§  62.  Sending  an  agent  to  examine  the  premises  after 
a  loss,  is  not  sufficient  proof  of  waiver  of  preliminary 
proofs,  the  agent  having  told  the  assured  he  must  send 
them.  A  company  may  investigate  simply  to  see  whether 
morally  it  ought  to  waive  conditions.  Busch  v.  Ins.  Co.  6 
Phila.  Rep.  252.     1867. 

§  63.  Question  of  waiver  of  preliminary  proof  is  for 
the  jury.  The  insurer  is  bound  to  apprise  the  assured  of 
any  defect  of  such  proofs  on  which  he  intends  to  insist, 
and  a  waiver  can  be  inferred  from  a  general  objection  of 
informality  and  incorrectness  being  made  to  the  proofs, 
for  such  an  objection  might  be  the  most  artful  means  of 
misleading  the  insured  as  to  the  real  difficulty.  Madsden 
v.  Phoenix  Fire  Ins.  Co.  1  S.  Ca.  (N.  S.)  24.     1868. 

§  64.  If  a  few  articles  are  inadvertently  omitted  from 
the  preliminary  proofs,  they  may  nevertheless  be  recovered 
for,  if  a  suit  is  brought  on  the  loss,  -^tna  Ins.  Co.  v. 
Stevens,  48  111.  31.     1868. 

§  65.  What  "  particular  account "  is  insufficient  and 
plaintiff  nonsuited  therefor  (following  Greaves  v.  Niagara 
Dist.  Mut.  Ins.  Co.  §  57,  supra).  Carter  v.  Niagara  Dist. 
Mut.  Ins.  Co.  19  U.  C,  C.  P.  143.     1868. 

§  66.  Per  Smith,  J.  The  clause  requiring  prelimin- 
ary proofs  within  ten  days,  is  a  condition  precedent  to  re- 
covery, which  time  is  of  the  essence ;  that  performance  is 


1 

m 

i 

■ 

1  1 

1 

J  *'■' 

1 

1.    '3, 

ii 

528 


PRELIMINARY    PROOFS. 


rendered  impossible  by  act  of  God,  is  an  excuse  only  to  a 
duty,  is  created  by  law  and  not  by  contract,  but  construc- 
tion of  such  conditions  is  to  be  most  liberal  in  favor  of 
assured. 

The  assured,  being  absent  at  the  time  of  the  fire,  one 
"W".,  having  some  interest,  caused  due  notice  to  be  given  to 
the  local  agent;  twenty  days  afterward,  the  general  agent 
came  with  a  director  and  a  member  of  the  executive  com- 
mittee to  settle  the  loss ;  twenty  days  after,  the  general 
agent  a<?ain  came,  stating  he  came  to  adjust  the  loss;  be- 
ing told  of  the  absence  of  plaintiff,  and  that  proofs  of  loss 
had  not  yet  been  made,  he  said  it  would  make  no  ditfer- 
ence.  On  the  plaintiflf's  return,  a  month  and  a  half  after- 
wards, the  proofs  were  sent,  kept  by  the  company  ten  days, 
and  returned,  with  notice  that  the  claim  would  be  con- 
tested. Held,  a  distinct  recognition  of  liability  after  the 
ten  days,  establishing  a  waiver  of  proof  within  the  ten 
days.  Owen  v.  Farmers'  Joint  Stock  Ins.  Co.  57  Barb. 
518.     1869. 

§  67.  An  objection  to  the  magistrate  signing  the 
proofs  of  loss,  but  not  to  the  form  of  the  proof,  is  a  waiver 
of  defective  form.  Bailey  v.  Hope  Ins.  Co.  56  Me.  474. 
1869. 

§  68.  Although  the  inadvertent  omission  of  an  article 
in  the  preliminary  proof,  the  company  settling  the  loss 
promptly  on  the  exhibited  account,  concludes  the  assured ; 
yet,  if  he  is  compelled  to  resort  to  a  suit  to  recover  the  loss, 
he  may  prove  the  loss  of  any  article  so  omitted  from  his 
account.  Commercial  Ins.  Co.  of  Chicago  v.  Huckberger, 
52  111.  464.     1869. 

§  69.  The  agent's  declarations,  when  the  assured 
offers  to  make  preliminary  proofs,  that  the  company  is  ex- 
onerated, is  a  waiver  of  the  proofs.  Manhattan  Ins.  Co. 
v.  Stein  &  Zang,  5  Bush.  652.     1869. 

§  70.  A  railroad  was  insured  against  its  liability  for 
fires  from  locomotive  sparks,  under  a  policy  requiring 
notice  of  loss  forthwith,  and  within  sixty  days  from  the 
fire,  as  particular  an  account  as  the  nature  of  the  loss  will 
admit.  It  was  necessary  for  the  railroad  to  hear  of  the 
loss  and  investigate  its  own  liability,  before  it  could  give 


PRELIMINARY    PROOFS. 


529 


notice.  After  several  losses  of  which  no  notice  was  given, 
the  railroad  informed  the  agent  that  they  were  investigat- 
ing the  claims.  The  agent  assented,  and  requested  when 
they  had  got  through  paying,  to  send  in  a  schedule,  and  it 
should  be  attended  to.  Held,  the  time  and  manner  of  giv- 
ing notice  and  furnishing  proofs  was  waived.  Eastern  R. 
R.  V.  Relief  Fire  Ins.  Co.  105  Mass.  570.     1870. 

§  71.  "A  particular  account  of  such  loss"  was  to  he 
given  to  the  secretary  within  thirty  days.  It  was  given 
thus:  "Furniture,  $367;  groceries,  $233,"  merely  reiterat- 
ing the  policy.  Held,  every  one  may  be  presumed  to  re- 
raember  some  particulars,  though  his  books  may  be  lost, 
and  that  this  was  no  statement  at  all ;  and  the  sufficiency 
of  a  statement  is  not  for  the  jury.  That  the  case  of  Ly- 
coming Co.  Ins.  Co.  V.  Updegraff  only  decides  that  when 
some  particularity  is  given,  the  jury  may  decide  whether 
it  is  as  particular  as  it  should  have  been.  Beatty  v.  Ly- 
coming Co.  Mut.  Ins.  Co.  66  Pa.  St.  9.    1870. 

§  72.  To  constitute  a  waiver  of  the  particular  account, 
there  must  be  some  official  act  or  declaration  of  the  com- 
pany during  the  currency  of  the  time  dispensing  with  it — 
something  trom  which  the  assured  might  reasonably  infer 
that  the  company  did  not  mean  to  insist  upon  it.  Mere 
silence  is  not  enough,  when  the  defects  of  the  statement 
sent  are  not  formal,  but  so  substantial,  that  it  cannot  be 
regarded  as  a  statenient  at  all. 

The  thirty  days  having  expired,  only  an  express  agree- 
ment could  renew  the  contract.  Beatty  v.  Lycoming  Co. 
Mut.  Ins.  Co.  66  Pa.  St.  9.     1870. 

§  73.  The  company,  by  receiving  and  retaining  the 
notice  and  proofs  of  loss,  so  far  admit  that  they  were  prop- 
erly made,  that  the  assured  may  prove  compliance  with 
the  condition  requiring  them,  simply  by  his  own  evidence 
of  having  delivered  them,  and  that  no  objection  had  been 
made,  without  giving  the  company  notice  to  produce  them. 
Hartford  Ins.  Co.  v.  Walsh,  54  111.  164.     1870. 

§  74.  Insanity  is  a  sufficient  excuse  for  non-compliance 
with  the  requirement  as  to  preliminary  proofs ;  but  if  ade- 
quate proofs  are  sent,  it  does  not  make  any  diffi?rence 

84 


630 


PBELIMINABY    PBOOFS. 


whether  made  by  an  insane  man  or  not.    Insurance  Cos. 
V.  Boykin,  12  Wallace,  433.     1870. 

§  75.  Although  it  might  be  ordinarily  a  fatal  objec- 
tion that  the  proofs  of  loss  are  sworn  to  by  an  agent,  and 
not  by  the  assured,  yet,  where  the  company  had  dealt  only 
with  the  agent,  and  he  alone  had  the  care  of  the  property 
and  knew  the  facts  necessary  for  the  proofs,  so  that  if 
proofs  are  not  to  be  made  by  him,  they  cannot  be  made 
at  all,  such  agent's  oath  is  a  compliance  with  the  require- 
ment. 

The  company  having  received  such  certificate  without 
objecting  until  the  day  of  trial,  objecting  to  payment  on 
other  grounds,  the  alleged  defect  is  waivea.  Sims  v. 
State  Ins.  Co.  of  Hannibal,  47  Mo.  54.     1870. 

§  76.  Tho  company's  agent,  immediately  after  the 
loss,  without  waiting  for  preliminary  notice,  called  for  and 
took  away  the  plaintiff's  books  and  papers,  for  the  pur- 
pose of  making  an  inventory  of  the  loss,  and  the  plaintiff 
obeyed  all  instructions  of  the  agent.  Held^  evidence  from 
which  a  waiver  of  preliminary  proofs  may  be  inferred. 
Security  Ins.  Co.  v.  Fay,  22. Mich.  467.     1871. 

§  77.  Preliminary  proofs,  which  were  required  to  give 
actual  cash  value  at  the  time  of  fire,  consisted  of  the  de- 
tailed statement  of  a  builder  as  to  the  cost  of  rebuilding. 
Held,  clearly  defective. 

A  letter  by  the  secretary  to  the  assured,  although  de- 
nying responsibilit}'^  on  other  grounds,  yet  stating  that 
the  preliminary  proofs  were  wholly  unsatisfactory,  and 
reserving  all  objections  of  every  kind  to  a  recovery,  is  no 
waiver  of  the  defect  in  the  proofs  of  loss.  Citizens'  Fire 
Ins.  Co.  v.  Doll,  35  Md.  89.     1871. 

§  78.    Policy  required  notice  of  loss,  and  as  bo<\\  tli 
after  as  possible,  a  particular  account  of  sik     ^    ^  sworn 
to,  <fec.,  and,  if  required,  shall  produce  book  "Assured 

gave  his  account  thus:  "A  general  varie,  of  dry  gooda 
suitable  for  this  market,  cash  value  about  ^<,r>00,"  stating 
that  he  could  not  give  a  more  minute  description,  because 
his  books  were  burnt.  This  proof,  sworn  to  by  an  agent, 
being  objected  to,  the  assured  put  his  own  oath  to  them. 


PRELIMINARY    PROOFS. 


531 


The  company  still  objecting,  and  l)eing  called  upon  to 
state  what  more  they  required,  and  being  silent,  are  held 
to  have  waived  any  demand  for  further  proof;  and  aertihle^ 
that  the  assured,  having  given  as  much  proof  as  he  could,  it 
is  a  substantial  compliance  with  the  requirement.  Home 
Ins.  Co.  V.  Cohen,  20  Grattan  (Va.)  312.     1871. 

§  79.  A  company's  refusal  to  pay  on  other  grounds 
than  defective  proofs,  and  its  failure  to  object  to  such  proofs, 
waives  that  defense.  Globe  Ins.  Co.  v.  Boyle,  21  Oh.  St. 
119.  1871.  Spratley  v.  Hai-tford  Ins.  Co.  1  Dillon,  392. 
1871. 

§  80.  That  one  of  defendants'  agents  used  language 
which  may  have  induced  the  plaintiff  to  postpone  proofs 
of  loss  until  after  the  ten  days  provided,  is  sufficient  to 
support  a  finding  of  waiver  of  the  time.  It  is  not  clear 
whether  this  was  not  a  general  agent. 

The  proofs  being  returned  on  other  grounds,  and  with- 
out objection  that  they  had  not  been  furnished  within  the 
time  required,  is  a  waiver,  the  foi-feiture  being  technical 
alone.  Dohn  v.  Farmers'  Joint  Stock  Ins.  Co.  5  Lansing, 
275.     1871. 

§  81.  Policy  provided  that  no  act  or  omission  of  the 
company  or  its  agents  should  be  deemed  a  waiver  as  to 
prelmiinary  proofs,  unless  made  in  express  terms  in  writ- 
ing. Held,  though  a  party  may  renounce  settled  legal 
rights,  his  purpose  so  to  do  must  be  affirmatively  shown, 
and  his  acceptance  of  a  policy  without  his  attention  being 
particularly  drawn  to  such  clause,  does  not  produce  such 
result.  The  proofs  furnished  ottered  to  supply  "any 
other  information  that  might  be  required  "  on  call.  Ileldy 
the  company's  failure  to  respond  is  a  waiver  of  defects. 
Pitney  v.  Glen's  Falls  Ins.  Co.  01  Barb.  335.     1871. 

§  82.  When  proofs  are  properly  mailed,  the  presump- 
tion, in  the  absence  of  evidence,  is  that  they  reached  their 
destination  in  due  course.  Killips  v.  Putnam  Fire.  Ins.  Co. 
28  Wis.  472.     1871. 

§  83.  If  there  is  no  e^ndence  to  show  that  defendant, 
within  a  reasonable  time  (in  this  case  two  months),  noti- 
fied assured  of  the  defect  or  insufficiency  of  his  ^proofs  ot 


I 


:'i| 


i 


i 


wi  li, 


532 


PREMIUM    NOTES. 


loss,  it  must  be  held  that  the  defendant  was  satisfied  there- 
with, and  waived  the  objections  that  the  proofs  were  not 
fiu'nished  in  time,  and  did  not  contain  the  certificate  of  the 
nearest  magistrate.  Killips  v.  Putnam  Fire  Ins.  Co.  28 
Wis.  472.     1871. 

§  84.  There  being  evidence  that  for  the  accommoda- 
tion of  the  defendants'  general  agent,  and  at  his  sugges- 
tion, another  magistrate  than  the  nearest  was  resorted  to 
in  getting  up  the  proofs,  the  jury  may  find  the  require- 
ment as  to  the  nearest  magistrate  has  been  waived.  Kil- 
lips V.  Putnam  Fire  Ins.  Co.  28  Wis.  472.     1871. 

§  85.  When  a  condition  requires  the  assured  to  pro- 
duce certified  copies  of  lost  invoices,  and  evidence  is  given 
tending  to  show  that  the  plaintiff  was  requested  to  pro- 
duce duplicates  of  the  invoices,  the  bill  of  exceptions  not 
showing  whether  such  request  was  made  before  or  after 
commencement  of  suit,  or  whether  the  plaintiff  neglected 
to  comply  or  not,  the  court  will  not  find  error  in  a  refusal 
to  charge  that,  if  the  jury  believe  the  request  for  duplicates 
was  made  before  conunencement  of  suit,  and  compliance 
neglected,  the  plaintiff's  right  of  action  never  accnied — 
the  condition  is  broken.  Ins.  Cos.  v.  Weides,  14  Wall. 
375.     1871. 

See  Agent,  §  93.  Books  of  Account  and  Vouchers,  Examination  Under 
Oath,  Certificate,  Notice  of  Loss.  Also,  Agent,  55,  81,  85.  Assignment,  66. 
By-LawB  and  Conditions,  13.  Encumbrance,  51.  Evidence,  58, 1)4,  105,  107. 
False  Swearing,  85.  Limitation  Clause,  18,  41.  Notice  of  Loss,  85,  37,  39, 
41.  Payment  of  Loss,  15.  Pleading  and  Practice,  21,  69.  O'lcstions  for 
Court  and  Jurv,  12.  Reinsurance,  3.  Title,  18.  Waiver,  1,  3,  4.  /;,  6,  7, 10, 
11,  18,  14,  23,  24,  26,  27,  82. 


PREMIUM    NOTES. 

§  1.  The  power  to  take  premium  notes  is  implied  by 
the  power  to  insui*e.    Mclntire  v.  Preston,  5  Gilra.  111.  48. 

1848. 

§  2.  A  premium  note  is  valid  in  the  hands  of  a  lona 
fide  assignee,  if  insurance  company  liad  power  to  take  it 
for  any  purpose.  Mclntire  v.  Preston,  5  Gilm.  111.  48. 
1848. 


PREMIUM    NOTES. 


533 


ty 


§  3.  If  a  policy  is  originally  void,  the  premium  note, 
given  for  the  same,  is  also  invalid.  Frost  v.  Saratoga 
Comity  Mut.  Ins.  Co.  5  Denio,  N.  Y.  154.     1848. 

§  4.  The  act  of  incorporation  provided,  that  any  mem- 
ber, neglecting  to  pay  his  annual  assessment  within  thirty 
days  from  the  day  appointed  for  such  payment,  should 
cease  to  have  his  property  insured  until  the  day  on  which 
he  pays,  &c.  The  first  section  of  the  by-laws  required  each 
individual,  on  effecting  an  insurance,  "to  make  payment 
into  the  treasiuy  by  note  given  for  such  per  centum  on  the 
property  insured  as  the  directors  shall  require,  the  same 
being  intended  to  cover  the  amount  of  risk  during  the 
term  of  insurance,  and  to  be  received  as  security,  and  pay- 
ment in  advance,  of  all  such  annual  assf.  iments  as  may 
hereafter  be  made  on  such  insurance,  on  which  note  a  part 
not  exceeding  three  per  cent.,  at  the  discretion  of  the  di- 
rectors, shall  be  paid  immediately ;  the  balance  to  be  called 
for  at  such  times  as  the  directors  deem  requisite  for  the 
payment  of  losses  or  other  expenses."  The  second  section 
of  the  by-laws  provided,  "  that  if  a  member  failed  to  pay 
such  assessments  as  shall  from  time  to  time  be  made  upon 
this  balance  of  his  deposit  note,  according  to  the  pro- 
visions of  the  first  section,  he  may  be  required  to  pay  the 
whole  of  his  deposit  note,  with  costs,"  <fec.  The  plaintiff 
failed  to  pay  an  assessment  mads  upon  his  deposit  note. 
Held,  that  the  by-laws  acknowledged  the  reception  of  the 
note  to  be  payment  in  advance  of  future  possible  annual 
assessments,  not  exceeding  the  amount  of  the  note ;  and 
that  the  assessments  must,  as  against  the  company,  be 
taken  as  paid  by  the  note ;  and  that  the  power  of  enforcing 
their  payment  as  assessments,  could  no  longer  exist ;  that 
the  plaintiff  did  not,  by  his  failure  to  pay,  cease  to  be  in- 
sured, but  was  liable  by  the  terms  of  the  by-laws  to  be 
called  on  to  pay  tbe  whole  of  the  note.  Rix  v.  Mutual 
Ins.  Co.  20  N.  H.  198.     1849. 

§  5.  In  an  action  on  a  premium  note  to  a  mutual  in- 
surance company,  such  notes  furnishing  the  fund  to  which 
the  other  insured  looked  for  indemnity,  the  maker  is  es- 
topped from  denying  that  he  had  an  insurable  interest. 
He  can  only  get  rid  of  the  note  by  surrendering  his  policy 


•1 


i  t 


i 


c. 


M 


III 


i 


534 


PREMIUM    NOTES. 


and  taking  it  up.  Nor  can  he  reduce  liis  liability  on  the 
note,  by  setting  up  that  he  was  only  interested  in  part  of 
the  propei-ty  described.  Nevv  England  Mut.  Fire  Ins.  Co. 
V.  Belknap,  9  Cash.  Mass.  140.     1851. 

§  6.  Surrender  of  premium  note  by  an  arrangement 
with  company  binding,  unless  impeached  for  fraud  or  mis- 
take; even  tliough  there  were  unadjusted  losses,  on  which 
the  maker  made  no  payment.  Hyde  v.  Lynde,  4  Comst. 
lSr.Y.387.     1851. 

§  7.  Policy  and  premium  note  independent  contracts ; 
and  default  by  one  party  does  not  absolve  the  other.  A 
vote  by  the  company  to  suspend  insurances  when  notes 
not  paid,  affects  neither  note  or  policy,  unless  the  insured, 
when  first  apprised  of  it,  assents  thereto.  New  England 
Mut.  Fire  Ins.  Co.  v.  Butler,  34  Me.  451.     1852. 

§  8.     In  an  action  by  an  insurance  company  on  a  pre- 
mium note,  it  is  no  defense  to  say  that  the  company  is  in- 
solvent ;  for  an  insolvent  party  may  enforce  valid  contracts 
-V       in  his  favor  in  law.     Alliance  Mut.  Ins.  Co.  v.  Swift,  10 
^        Cush.  Mass.  433.     1852. 

§  9.  Note  given  to  a  mutual  company  cannot  be  col- 
lected, if  policy  was  void  «/>•  initio.  Lynn  v.  Burgoyne, 
13  B.  Monroe,  Ky.  400.     1852. 

§  10.  Where  a  Fsmber  of  a  mutual  insurance  com- 
pany, whose  stock  of  goods  was  insured,  sold  them  several 
months  before  the  happening  of  a  loss  by  fire ;  Held,  that 
for  want  of  interest,  his  policy  was  avoided ;  and  that  he 
was  not  liable,  therefore,  for  his  proportion  of  the  loss ; 
his  dej)Osit  note  being  only  a  means  of  securing  the  pay- 
ment of  assessments  for  losses  during  his  membership. 
Wilson  v.  Tiiimbull  Mut.  Ins.  Co.  19  Penn.  St.  372.     1852. 

§  11.  A  premium  note,  given  to  a  mutual  insurance 
company,  agreeing  to  pay  said  company  a  certain  sum  in 
such  portions  and  at  such  time  or  times  as  the  directors  of 
the  said  com])any  may  require,  is  a  note  payable  by  install- 
ments, at  the  election  of  the  payee,  on  a  discretion,  and 
must  therefoi'e  be  regni'ded  as  a  note  for  the  full  amount 
expressed  as  much  as  if  it  were  payable  absolutely  in  in- 


PBEMIUM    NOTES. 


535 


stallment8.  In  an  action  on  such  note  the  final  jurisdiction 
of  a  justice  must  be  determined  by  the  amount  of  the  note, 
without  reference  to  the  amount  due.  Washington  County 
Mut.  Ins.  Co.  V.  Miller,  26  Vt.  77.     1853. 

§  12.  By  the  charter  of  the  plaintiff  company,  it  may 
recover  the  whole  amount  of  note,  if  maker  fails  to  pay  an 
assessment  within  thirty  days  after  publication  of  notice. 
St.  Louis  Mut.  Fire  &  Marine  Ins.  Co.  v.  Boeckler,  19  Mo. 
135.     :853. 

>  X  3.  The  St.  Louis  Mutual  Fire  and  Marine  Insurance 
Company,  imder  its  charter,  may  retain  premium  notes  un- 
til losses,  liable  to  be  assessed  against  it,  are  paid.  St. 
Louis  Mut.  Fire  <fe  Marine  Ins.  Co.  V.  Boeckler,  19  Mo.  135. 
1853. 

§  14.  Where  the  charter  and  by-laws  of  the  company 
provided  for  assessment  in  case  of  losses,  not  to  exceed  the 
amount  of  the  premium  notes ;  Jleld,  that  without  such 
losses,  no  recovery  could  be  had  on  the  notes,  although 
absolute  on  their  face.  Insurance  Co.  v.  Jar  vis,  22  Conn. 
133.     1853. 

§  15.  Where  the  charter  of  an  insurance  company  re- 
quires the  assignee  of  a  policv  to  give  satisfactory  security 
for  the  residue  of  the  premium  note,  it  is  not  necessary 
that  he  should  give  his  own  note ;  leaving  the  note  of  the 
assignor,  if  that  is  satisfactory,  is  sufficient.  Durar  v. 
Hudson  County  Mut.  Ins.  Co.  4  Zabr.  N.  J.  171.     1853. 

§  16.  Defendant  surrendered  his  policy  to  an  agent  of 
the  plaintiff  for  cancellation,  and  it  was  marked  canceled 
on  the  policy,  and  also  on  the  books  of  the  company.  At 
the  same  time  i  L^  agent  agreed  to  get  defendant's  premium 
note,  but  did  not  do  so.  In  an  action  on  such  note  for 
assessments ;  JMd,  that  the  canceling  of  the  policy  did  not 
discharge  the  note  so  far  as  it  was  already  liable  for  losses ; 
and  that  the  burden  of  proof  was  on  the  defendant  to  show 
that  the  agent  had  authority,  express  or  implied,  to  prom- 
ise the  surrender  of  the  note ;  and  that  he  would  not  be 
authorized  to  make  such  promise  merely  by  virtue  of  his 
authority  to  act  as  agent  for  the  company  in  taking  and 
transmitting  policies.  Marblehead  Mut.  Fire  Ins.  Co.  v. 
Underwood,  3  Gray,  Mass.  210.     1855. 


: 


mm 


536 


PBEMIUM    IfOTES. 


§  17.  In  an  action  on  a  policy,  acknowledging  the  re- 
ceipt of  a  premium  note,  no  further  evidence  of  the  pre- 
mium note  or  its  contents  is  necessary.  Troy  Fire  Ins.  Co. 
V.  Carpenter,  4  Wis.  20.     1855. 

§  18.  Where  a  statute  provided  that  "the  matter  in 
demand,  in  an  action  on  note,  shall  be  considered  the 
amount  of  the  note,  deducting  endorsements ; "  Held,  that 
a  premium  note  for  $189,  given  for  insurance,  and  agreeing 
to  pay  in  such  sums  and  at  such  times  as  the  company 
might  require,  was  a  note  within  meaning  of  the  statute, 
and  if  the  amount  exceed  $100,  the  county  court  had  juris- 
diction, and  that  suit  for  assessments  upon  the  same  might 
be  brought  before  the  county  court,  although  the  aggregate 
of  such  assessments  did  not  amount  to  $100.  Farmers' 
Mut.  Fire  Ins.  Co.  v.  Marshall,  29  Vt.  23.     1856. 

§  19.  Where  the  by-laws  of  a  mutual  insurance  com- 
pany provided  that  all  the  cash  premiums  and  deposit 
notes  received  by  the  company,  for  the  insurance  of  per- 
sonal property  and  real  estate,  should  be  deemed  the  abso- 
lute funds  of  the  company  to  be  applied  in  payment  of  ex- 
penses, losses  by  fire,  and  returns  of  premiums ;  Held,  that 
under  the  by-laws  of  this  company,  the  deposit  notes  were 
made  a  part  of  the  absolute  funds  of  the  company,  and  as 
such  collectable  at  the  discretion  of  the  directors,  without 
any  regard  to  the  validity  of  the  assessment,  for  the  pay- 
ment of  debts  or  liabilities  of  the  company,  and  that  such 
a  by-law  was  not  in  conflict  with  the  Revised  Statutes, 
chap.  37,  §  31.  Long  Pond  Mut.  Fire  Ins.  Co.  v.  Hough- 
ton, 6  Gray,  Mass.  77.     1856. 

§  20.  Where  an  agent  in  effecting  an  insurance  in  a 
mutual  company  represented  to  the  applicant  that  the 
company  had  a  large  surplus,  and  that  $5  would  be  all 
that  the  applicant  would  have  to  pay  upon  his  insurance, 
and  the  applicant  thereupon  gave  a  premium  note  agree- 
ing to  pay  every  assessment  within  thirty  days,  or  else  to 
pay  the  whole  note  at  the  election  of  the  company ;  Held, 
that  the  representations  of  such  agent  could  not  be  ad- 
mitted to  vary  the  written  stipulations  of  the  note,  in  suit 
upon  the  same,  for  assessments.  Farmers'  Mut.  Fire  Ins. 
Co.  v.  Marshall,  29  Vt.  23.     1856. 


PEEMIUM    NOTES. 


537 


§  21.  Where  an  agent,  authorized  to  take  applica- 
tions, receive  premiums,  and  premium  notes,  for  insurance, 
represented  that  the  company  was  solvent,  and  had  a 
capital  of  $275,000,  <fec.,  and  thereby  induced  defendant 
to  take  a  policy,  and  it  afterwards  appeared  that  the  com- 
pany was  insolvent  at  the  time ;  Held^  that  the  company 
was  bound  by  the  agent's  fraudulent  representations ;  and 
that  defendant,  upon  discovery  of  the  fraud,  might  rescind 
the  contract;  and,  by  restoring  the  other  party  to  the 
condition  in  which  he  stood  previous  to  making  the  con- 
tract, might  claim  a  return  of  his  premium  note,  provided 
he  did  so  at  the  earliest  moment  after  discovering  the 
fraud ;  but  unless  the  defendant  aver  in  his  answer  that 
he  did  this,  the  fact  cannot  be  proved  on  the  trial  Deven- 
dorf  V.  Beardsley,  23  Barb.  N.  Y.  656.     1857, 

§  22.  Policy  and  premium  notes  are  not  dependent 
contracts ;  but  if  policy  is  avoided  by  acts  of  assured,  the 
premium  note  remains  in  full  force,  subject  to  assessments, 
until  assured  surrender  the  policy,  and  the  company  re- 
ceive notice  of  such  surrender.  Atlantic  Ins.  Co.  v.  Good- 
all,  35  N.  H.  328.     1857. 

§  23.  No  action  can  be  sustained  on  a  "  premium 
note,"  given  to  a  mutual  insurance  company,  in  New  York, 
since  the  act  of  1853  took  effect,  either  by  the  company  or 
its  receiver,  except  it  be  to  pay  for  losses  or  expenses,  ac- 
tually accrued  while  such  note  was  in  force,  and  after 
assessment.  Assessment,  or  apportionment,  is  a  condition 
precedent,  necessary  to  be  averred  in  the  complaint  and 
proved  at  the  trial.  Devendorf  v.  Beardsley,  23  Barb. 
N.  Y.  656.  1857.  Toll  v.  Whitney,  18  How.  N.  Y.  161. 
1858.    See  also.  Savage  v.  Medbury,  19  N.  Y.  32.    1859. 

§  24.  In  an  action  upon  a  premium  note,  for  the  re- 
covery of  the  whole  note,  because  of  the  non-payment  of 
an  assessment;  Held^  that  the  recovery  for  the  whole 
amount  of  the  note  was  in  the  nature  of  a  penalty,  and 
there  being  no  express  agreement  to  pay  interest,  interest 
was  not  recoverable  under  a  penalty.  Bangs  v.  Mcintosh, 
23  Barb.  N.  Y.  591.     1857. 

§  25.    The  New  York  statute  of  1849  required  mutual 


f       ! 


j';    in 


il 


V 


538 


PB£MIUM    NOTES. 


insurance  companies,  before  commencing  business,  to  pro- 
cure the  certificates  of  the  Comptroller  and  Secretary  of 
State,  showing  that  the  company  had  received  premium 
notes  in  advance  to  a  certain  amount,  payable  within 
twelve  months.  The  company  in  this  case  issued  a  policy 
and  took  an  ordinary  premium  note,  payable  in  such  por- 
tions and  at  such  times  as  the  directors,  agreeably  to  the 
charter  and  by-laws,  might  require ;  Held,  that  this  was 
not  such  a  note  as  the  company  was  authorized  to  take 
before  obtaining  the  certificates  of  the  Comptroller  and 
Secretary  of  State ;  and  that,  as  the  note  and  policy  were 
executed  before  the  company  had  authority  to  enter  into 
such  contracts,  they  were  both  void.  Willis ms  v.  Babcock, 
25  Barb.  N.  Y.  109.     1857. 

§  26.  Where  a  premium  note  was  payable  in  assess- 
ments of  which  a  certain  notice  was  to  be  given ;  Heldy 
that  a  receiver  of  the  company  could  not  enforce  collection 
by  suit  until  the  conditions  of  payment  had  been  satisfied 
by  levying  assessments  and  giving  the  required  notice 
thereof.     Williams  v.  Babcock,  25  Barb.  N.  Y.  109.    1857. 

§  27.  Where  the  charter  provided  that  "notes  re- 
ceived in  advance  of  premiums  on  open  policies  shall  in 
no  case  be  deemed  liable  for  any  losses  that  may  accrue 
beyond  the  actual  earnings  on  such  policies,"  and  a  pre- 
mium note  for  a  nominal  premium  upon  an  open  poiicy 
is  given,  after  the  company  has  been  organized  ana  com- 
menced business,  is  a  "  premium  note  "  and  not  a  "  sub- 
scription or  capital  stock  note,"  and  the  maker  is  liable  to 
the  company  on  such  note  only  to  the  amount  of  the 
actual  premiums  upon  risks  assumed  by  the  company  and 
endorsed  on  the  policy,  and  a  receiver  of  the  company 
can  recover  no  greater  amount.  Elwell  v.  Crocker,  4 
Bosw.  N.  Y.  22.     1858. 

§  28.  It  is  no  defense  to  an  action  on  premium  note, 
that  the  company  became  insolvent  before  the  expiration 
of  the  policy.  Sterling  v.  Mercantile  Mut.  Ins.  Co.  32 
Penn.  St.  75.     1858. 

§  29.  A  premium  note  given  to  a  mutual  company  is 
not  void  because  the  charter  of  the  company  was  to  expire 


PREMIUM    NOTES. 


539 


by  limitation  prior  to  the  expiration  of  the  contract  of 
insurance.  The  policy  is  valid  for  the  unexpired  term  of 
the  charter.  Nor  is  the  assured  entitled  to  any  "  rebate 
or  reduction  "  from  the  amount  of  the  assessment,  or  from 
the  amount  of  the  premium  note  because  of  that  fact. 
Huntley  v.  Beecher,  30  Barb.  N.  Y.  580.  1859.  See  also, 
Huntley  v.  Merrill,  32  Barb.  N.  Y.  626.     1860. 

§  30.  Where  the  contract  is  to  pay  such  portions  of 
the  premium  note  and  at  such  times  as  the  directors  may 
require  agreeably  to  the  act  of  incorporation  and  by-laws, 
in  an  action  for  assessments,  the  declaration  must  allege 
the  assessments  to  have  been  made  in  conformity  to  the 
act  and  by-laws.  Atlantic  Mut.  Fire  Ins.  Co.  v.  Young, 
38  N.  H.  451.     1859. 

§  31.  Where  the  charter  of  a  mutual  company  pio- 
vided  that  if  a  member  neglects  for  a  certain  time  to  pay 
any  sums  assessed  upon  his  premium  note,  a  suit  may  be 
brought,  and  the  whole  amount  of  the  deposit  note  may  be 
recovered  ;  the  whole  note  may  be  recovered  in  an  action 
on  the  note  alone,  and  against  the  maker  only.  Huntley 
V.  Merrill,  32  Barb.  N.  Y.  626.     1860. 

§  32.  A  note  given  to  a  mutual  insurance  company 
in  New  York,  to  be  used  as  a  premium  note  only,  cannot 
be  used  as  a  part  of  the  original  capital  stock  on  which 
the  company  is  organized;  and  if  so  used  without  the 
maker's  knowledge  or  consent,  it  is  a  misappropriation 
that  does  not  bind  him,  being  a  fraudulent  perversion  ot 
its  object  and  design.  The  note  in  such  case  is  invalid, 
except  in  the  hands  of  a  horiafide  holder,  and  the  company 
or  its  receiver  is  not  a  hona  fide  holder.  The  burden  of 
proving  it  an  original  capital  note  is  upon  the  company, 
and  evidence  on  part  of  maker,  showing  the  purpose  for 
which  such  note  was  given,  is  admissible.  The  fact  of  the 
note  being  made  before  the  company  was  organized  makes 
no  difference.  If  the  note  w^as  given  to  an  agent  of  the 
company,  they  must  be  deemed  to  have  had  notice  of  the 

Surpose  for  which  it  was  given.    Bell  v.  Shibley,  33  Barb. 
[.Y.610.     1861. 

§  33.  This  was  an  action  on  a  policy  to  S.,  payable  in 
case  of  loss  to  C.     S.  was  described  as  of  Roxbury,  Mass. 


^^BSBSM 


540 


PREMIUM    NOTES. 


1:      I 


One  of  the  by-laws  referred  to  in  the  policy  provided  that 
"  if  the  assured  shall  neglect,  for  the  term  of  thirty  days, 
to  pay  his  premium  note,  or  any  assessment  thereon,  when 
requested  to  do  so,  by  mail  or  otherwise,"  the  policy 
should  become  void.  An  assessment  was  made  on  the 
premium  note  of  S.,  and  notice  thereof,  with  a  request  for 
payment,  was  sent  by  mail  to  him  at  Roxbury,  which 
was  not  received  by  him,  because  he  had  then  removed  to 
Pittsburg,  Penn.  Held,  that  under  the  provisions  of  the 
by-law,  notice  was  complete  when  deposited  in  the  post- 
office  after  the  lapse  of  sufficient  time  for  it  to  reach  its 
destination ;  that  the  company  was  not  responsible  for  its 
delivery  to  the  assured ;  that  the  change  of  residence  did 
not  affect  the  company  until  notified  thereof;  and  that  as 
the  assessment  had  remained  unpaid  for  more  than  the 
space  of  thirty  days  after  the  notice  should  have  been  re- 
ceived in  the  post-office  at  Roxbury,  the  policy  was  void. 
Lothrop  V.  Greenfield  Stock  <fe  Mut.  Fire  Ins.  Co.  2  Allen, 
Mass.  82.     1861. 

§  34.  By  the  terms  of  the  charter  of  a  mutual  insur- 
ance company,  each  member  was  entitled  to  have  his 
premium  notes  surrendered  to  him  at  the  expiration  of  his 
term  of  insurance,  upon  payment  of  his  share  of  losses  and 
expenses  to  that  time ;  or  upon  alienation  of  the  property 
insured,  surrender  of  his  policy,  and  like  payment  of  his 
share  of  losses  and  expenses;  or  upon  payment  of  the 
whole  of  his  premium  notes  and  surrender  of  his  policy. 
Jlelil,  in  a  suit  by  a  receiver  for  the  benefit  of  creditors, 
that  a  surrender  of  the  premium  notes  upon  payment  of 
assessments  to  date,  and  cancellation  of  the  policies  by  or- 
der of  the  directors  of  the  company  before  its  insolvency, 
was  binding  upon  the  company  and  its  creditors.  Wads- 
worth  V.  Davis,  13  Ohio  St.  123.    1862. 

§  35.  The  non-acceptance  of  an  amendment  of  the  char- 
ter of  a  mutual  insurance  company  cannot  be  set  up  as  a 
defense  to  an  action  on  a  premium  note  given  by  the  de- 
fendant to  the  company  in  accordance  with  the  provis- 
ions of  the  amendment.  Fell  v.  McHenry,  42  Penn.  St. 
41.     1862. 

§  36.    Persons  who  have  given  premium  notes  to  a 


PBEMIUM    NOTES. 


541 


mutual  insurance  company,  and  have  thus  become  mem- 
bers of  the  corporation,  are  not  in  a  condition  to  assail  the 
organization  of  the  company,  by  way  of  defense  to  an 
action  on  such  notes.  Cooper  v.  Shaver,  41  Barb.  N.  Y. 
151.     1862. 

§  37.  Although  the  basis  of  all  assessments  on  pre- 
mium notes  so  long  as  the  right  to  make  them  remains, 
continues  to  be  "  the  original  amount  of  the  deposit  note," 
yet  the  fund  which  secures  them,  whether  in  note  or 
money,  is  only  the  amount  remaining  after  crediting  assess- 
ments already  paid.  Hence,  "  the  whole  amount  of  the 
deposit  note"  which  the  directors,  in  case  of  default,  are 
authorized  by  the  statute  to  sue  for  and  recover,  is  not  its 
face  but  the  actual  amount  for  which  the  note  continues  to 
stand  as  security.  Bangs  v.  Bailey,  37  Barb.  N.  Y.  630. 
1862. 

§  38.  Premium  notes,  constituting  the  capital  and 
being  regarded  as  assets  of  a  mutual  insurance  company, 
are  ultimately  liable  for  the  payment  of  debts  of  all 
classes.  It  is  therefore  proper  to  assess  them  to  pay  losses 
on  cash  or  stock  policies  issued  by  the  same  company. 
Cooper  v.  Shaver,  41  Barb.  N.  Y.  151.     1S62. 

§  39.  In  an  action  on  a  premium  note  given  on  effect- 
ing an  insurance,  brought  to  recover  the  whole  amount  on 
a  default  in  payment  of  an  assessment,  the  plaintiff  is  not 
entitled  to  interest  on  the  amount  of  the  note.  Bangs  v. 
Bailey,  37  Bai'b.  N.  Y.  630.     1802. 

§  40.  Since  the  New  York  statute  of  1853,  premium 
notes  given  for  more  than  five  times  the  amount  of  the 
cash  premium  are  illegal  and  void.  Otis  v.  Harrison,  36 
Barb.  N.  Y.  210.     1802. 

§  41.  The  maker  of  a  premium  note  given  to  a  mutual 
company  which  does  business  in  two  classes  in  pursuance 
of  its  charter,  is  not  liable  for  assessments  to  pay  any  other 
losses  than  those  happening  in  the  class  in  which  the  note 
was  given.     Allen  v.  Winne,  15  Wis.  113.     1862. 

§  42.  Notwithstanding  a  policy  be  regarded  as  abso- 
lutely void,  by  reason  of  an^unauthorized  transfer^  so  far  as 


i 


,    ! 


542 


PREJnUM    NOTES. 


to  prevent  an  action  for  a  lo8S  by  the  assured  against  the 
company,  the  former  is  not  released  from  the  obligation  of 
his  deposit  or  premium  note  until  he  has  complied  with  a 
condition  of  the  policy  and  charter,  requiring  "the  payment 
of  his  proportion  of  all  losses  and  expenses  that  may  have 
accrued  prior  to  the  surrender  "  of  the  policy,  or  alienation 
of  the  property.     Hyatt  v.  Wait,  37  Barb.  N.  Y.  29.  1862. 

§  43.  "Where  a  promissory  note,  on  its  face,  is  payable 
at  such  time  or  times  as  the  directors  of  a  mutual  insur- 
ance company  may,  agreeably  to  their  charter  and  by- 
laws, require,  the  presumption  is  that  it  was  given  and 
taken  as  and  for  a  premium  or  deposit  note ;  and  no  re- 
covery can  be  had  on  such  a  note,  unless  it  has  been  duly 
assessed. 

But  the  plaintiff  may  allege  and  prove  that  the  note, 
notwithstanding  its  form,  was  given  and  taken  as  and  for 
a  capital  stock  note,  and  used  as  such  in  organizing  the  in- 
surance company,  and  recover  the  whole  amount  thereof, 
without  showing  that  it  has  been  assessed  ;  such  notes 
being  payable  al)Solutely,  at  maturity.  Sands  v.  St.  John, 
36  Barb.  N.  Y.  628.     1862. 

§  44.  A  note  having  been  given  to  an  insurance  com- 
pany for  premiums,  payable  twelve  months  from  date,  and 
liable  for  losses  occurring  during  that  period,  was  assigned 
by  the  company  as  collateral  for  a  loan  to  them ;  the 
drawer  of  the  note  paid  to  the  pledgee  the  sum  for  which 
it  had  been  pledged,  which  was  less  tiian  its  face,  and  ob- 
tained the  note ;  the  company  becoming  insolvent  made 
an  assignment  to  assignees,  who  brought  trover  for  the 
note,  claiming  for  the  payment  of  losses  which  had  oc- 
curred during  the  time  for  which  it  had  been  given. 
Held^  that  the  plaintiffs  could  recover  only  the  balance 
due  on  defendant's  note,  deducting  the  nmount  for  which 
it  had  been  pledged.  Fell  v.  McHenry,  41  Penn.  St.  41. 
1862. 

§  45.  The  premium  notes  held  by  a  mutual  insurance 
company  in  Indiana,  are  not  promissory  notes  within  the 
statute  of  that  State  authorizing  a  levy  upon  choms  in 
action.    Hubler  v.  Taylor,  20  Ind.  446.     1863. 

§  46.    In  an  action  by  a  mutual  insurance  company 


PREMIUM    NOTES. 


£43 


against  one  of  its  members,  upon  his  premium  note,  the 
defendant  is  an  adversary  party ;  and  as  such  is  not  bound 
to  take  notice  of  their  proceedings  in  relation  to  his  note. 
American  Ins.  Co.  v.  Schmidt,  19  Iowa,  502.     1865. 


§  47.  In  a  suit  by  a  mutual  company  on  premium 
noteSj  it  is  a  good  defense  that  the  notes  were  given  as 
premiums  for  insurance  upon  property  in  which  the  de- 
fendant never  had  title,  and,  tlierefore,  no  insurable  in- 
terest.    Bersch  v.  Sinnissippi  Ins.  Co.  28  Ind.  64.     1867. 

§  48.  Suit  on  a  premium  note.  Answer,  that  the  de- 
fendant had  accepted  the  agent's  offer  to  have  his  house 
insured  for  the  sura  named,  on  condition  that  he  should 
have  an  unconditional  policy,  not  to  be  subject  to  further 
assessments  for  premiums;  that  the  agent  fraudulently 
represented  the  policy  to  be  such,  knowing  that  the  de- 
fendant was  illiterate,  whereas  there  was  a  condition,  in 
very  small  type,  making  the  company's  liability  depend 
on  prompt  payment  of  assessments  on  a  premium  note,  of 
which  defendant  was  unaware  until  assessed;  that  the 
signature  on  this  note  was  procured  by  the  agent's  repre- 
senting that  it  was  an  application  for  insurance,  and  that 
he  could  not  wait  for  it  to  be  read ;  that  defendant  could 
not  return  the  policy  on  discovering  the  fraud,  being  since 
then  unable  to  see  any  agent.  Hekl^  relief  must  be  given 
either  by  reformation  or  cancellation  of  the  policy.  Keller 
V.  Equitable  Fire  Ins.  Co.  28  Ind.  170.     1867. 

§  49.  The  charter  of  a  mutual  company  provided  for 
a  forfeiture  of  a  policy  upon  alienation  of  the  property, 
but  permitted  the  company  to  consent  to  an  assignment  of 
it  to  the  alienee.  Defendant  sold  the  premises,  assigned 
the  policy,  with  the  company's  consent,  to  the  alienee. 
The  policy  was  afterwards  reassigned  to  him  as  collateral 
security  for  a  debt  owed  him  by  the  alienee.  The  com- 
pany still  retained  defendant's  premium  note,  and  he  paid 
assessments  upon  it.  In  suit  by  receiver,  Held^  he  was 
not  liable  upon  his  premium  note  by  holding  the  policy 
as  a  collateral  security.  Miner  v.  Judson,  2  Lansing,  300. 
1870. 

§  50.    Charter  of  a  mutual  company  permits  it  to  re- 


544 


FBESaUU    NOTES. 


ceive  notes  for  premiums  in  advance,  entitling  the  makers 
to  a  dividend,  and  subject  to  be  used  for  losses  or  for  any 
purpose  connected  with  the  company's  business.  Held^ 
the  receiver  can  recover  on  the  notes  beyond  the  amount 
due  for  premiums  thereon. 

The  charter  required  the  notes  to  be  payable  "  within 
twelve  months  after  date."  Heldy  notes  drawn  payable 
twelve  months  after  date,  are  void.  Osgood  v,  Toplitz, 
8  Lansing,  184.     1870. 

§  51.  That  insured  confided  in  the  representations  of 
the  a^ent  as  to  how  great  the  assessments  would  be  on  the 
premmm  notes,  and  they  proved  to  be  greater  than  repre- 
sented, is  no  defense  to  the  note. 

But  that  the  agent,  by  the  authority  of  the  directors, 
misrepresented  the  solvency  of  the  company,  and  induced 
the  assured  to  enter  into  the  contract  tliereby,  is  a  good 
defense.     Boland  v.  Whitman,  33  Ind.  64.     1870. 

§  52.  To  a  suit  on  a  premium  note  by  the  receiver  of 
a  mutual  company,  an  answer  is  not  demurrable  while 
stating  that  the  agent  taking  the  risk  had  fraudulently 
represented  that  the  company  was  solvent,  and  that  its 
charter  forbid  assessments  more  than  at  the  rate  of  ten 
per  cent,  per  annum  on  its  premium  notes,  and  that  no 
assessment  would  be  made  the  first  year,  and  in  that  way 
persuaded  defendant  to  be  insured.  W  hitman  v.  Meissner, 
34  Ind.  487.     1870. 

§  63.  A  premium  note  given  to  a  mutual  com- 
pany matures  on  the  date  fixed  in  the  publication  of 
assessment,  and  the  statute  of  limitations  begins  to  run 
from  that  time,  and  a  subsequent  law  requiring  in  certain 
cases  a  personal  notice  also,  does  not  aflfect  the  maturing 
of  a  note  made  prior  to  such  law.  Sands  v.  Lilienthal  (I 
Sickles),  46  N.  Y.  541.     1871. 

See  Premium  Notes  in  Advance.  Assessments.  Also,  Agent,  §  59.  Can- 
cellation, 6,  7,  Classification  of  Risks,  2,  3,  5,  6,  7.  Dependency  of  Policy 
and  Premium  Note,  5,  12, 19,  22,  24,  25.  Foreign  Ins.  Cos.,  1,  6, 10, 11,  16, 
17,  18,  19,  20,  22,  32.  Illegality  of  Contract,  9.  Insolvency,  6,  6.  Mutual 
Cos.,  and  Members  of,  1.  Other  Insurance,  47.  Payment  of  Ptemiums,  28. 
Place  of  Making  Contract,  4.  Pleading  and  Practice,  40,  49,  56,  78.  Re- 
ceivers, 2,  3.    Revival  and  Suspension  of  Policy,  1.    Set-off,  8,  9, 10. 


PREMIUM   NOTES   IN   ADVANCE. 


of 


§  1.  The  defendant  gave  his  note  to  a  mutual  insur- 
ance company  at  its  organization  for  $1,000,  payable  in 
one  year.  During  the  year  he  incurred  premiums  to  the 
amount  of  $518 ;  and  at  the  expiration  of  the  year  he  paid 
the  premiums,  and  renewed  his  note  for  the  wnole  amount. 
HeM^  that  the  maker  had  a  right  at  the  end  of  the  first 
year  to  deduct  the  premiums  of  that  year,  and  only  give 
his  renewed  note  for  the  balance ;  but  as  he  had  chosen  to 
renew  his  note  for  the  whole  amount,  in  contemplation  of 
certain  benefits  conferred  in  such  cases,  he  was  now  bound 
for  the  whole  amount  of  it,  less  the  sum  of  the  premiums 
for  the  second  year.  Hone  v.  Ballin,  1  Sandf.  N.  Y.  181. 
1847. 

§  2.  An  action  may  be  maintained  on  a  renewed  pre- 
mium note  in  advance  after  the  failure  of  the  insurance 
company ;  and  the  fact  that  insurance  was  demanded,  in 
respect  to  such  note,  after  the  failure,  and  was  refused,  is 
no  defense.     Hone  v.  Folger,  1  Sandf.  N.  Y.  177.     1847. 

§  3.  Notes  given  to  a  mutual  insurance  company  at 
its  organization,  in  order  to  provide  a  fund  as  a  basis  for 
doing  business,  are  valid  contracts  for  a  valuable  consider- 
ation, and  may  be  enforced  by  the  receiver  on  the  insolv- 
ency of  the  company;  and  a  parol  agreement  with  the 
president,  cotenii)oraneous  with  the  execution  of  the  note, 
to  give  it  up  at  maturity,  cannot  be  shown  to  defeat  an. 
action  on  the  note ;  and  a  promise  by  the  president  of  the 
company  to  give  up  the  note,  made  after  it  fell  due,  is 
without  authority  and  void,  Brouwer  v.  Appleby,  1 
Sandf.  N.  Y.  158.  1847.  Hone  v.  Allen,  contained  in 
note  to  case  of  Brouwer  v.  Appleby. 

§  4.  Whether  premium  notes  were  given  at  the  or- 
ganization of  the  company  to  constitute  a  fund  to  transact 
business  on,  or  were  simply  notes  in  advance  to  secure 
premiums  to  accrue  on  an  open  policy  in  the  ordinary 
course  of  business,  is  a  question  of  fact  for  the  jury.  Mer- 
chants' Mut.  Ins.  Co.  V.  Key,  1  Sandf.  N.  Y.  184.  1847. 
Brouwer  v.  Hill,  1  Sandf.  f^.  Y.  629.     1848.      . 

85 


, 


546 


PEEMIUM    NOTES    IN    ADVAISCE. 


11 


I 


I 


§  5.  A  premium  note  was  executed  payable  to  the 
order  of  the  maker,  but  never  endorsed,  and  an  open  pol- 
icy was  issued  on  which  nothing  was  ever  writteL.  The 
maker  was  elected  one  of  the  trustees  of  the  company,  and 
the  note  was  included  iL  the  annual  statement  of  the 
company,  made  out  and  published  by  order  of  the  trustees. 
The  note  was  afterward,  by  order  of  t;ie  trustees,  and 
without  consideration,  delivered  up,  and  the  policy  was 
canceled.  There  was  testimony  tending  to  show  that  the 
note  and  policy  were  made  in  order  to  provide  votes  for 
an  election  of  officers  then  about  to  come  off.  IfeM,  that 
the  note  was  to  be  regarded  as  a  premium  note  in  advance^ 
or  as  an  accommodation  note ;  and,  either  way,  it  belonged 
to  the  assets  of  the  company,  and  the  trustees  had  no 
authority  to  deliver  it  up  without  consideration,  and  the 
maker  continued  liable  to  the  company  and  to  its  receiver 
on  the  contract.  Trouwer  v.  Hill,  1  Sandf.  N.  Y.  629» 
1848. 

§  6.  A  receiver  of  an  insurance  company  may  main- 
tain action  against  the  maker  of  a  premium  note  in  ad- 
vance, and  recover  the  amount  of  the  note,  where  the 
same  has  been  delivered  up  to  the  maker  in  violation  of 
the  rights  of  the  company  and  its  creditors.  Brouwer  v. 
Hill,  1  Sandf  N.  Y.  629.  1848.  Tuckerman  v.  Brown, 
11  Abb.  N.  Y.  389.     1860. 

§  7.  The  defendant  executed  to  the  Croton  Insurance 
Company  his  premium  note  in  advance,  and  afterward 
took  insurance  in  the  company.  The  company  having  l)e- 
come  insohent,  the  receiver  brought  an  action  on  the 
note ;  and  the  defendant  on  the  trial  sought  to  introduce 
evidence  to  prove  an  agreement  with  the  president  of  the 
company,  to  the  effect  that  the  note  was  to  be  delivered 
UT)  at  maturity,  and  was  to  be  liable  only  for  losses  accru- 
ing during  the  time  it  had  to  run.  But  the  evidence  was 
rejected,  and  judgment  given  for  the  amount  of  the  note 
and  interest,  less  the  premiums  on  the  insurance  which 
defendant  Lad  effected.  Cruikshank  v.  Brouwer,  11  Barb. 
N.  Y.  228.     185:. 

§  8.  Where  charter  authorized  company  to  take  pre- 
mium notes  in  advance,  of  those  designing  to  insure,  and 


PREMIUM   NOTES    IN    ADVANCE. 


547 


note 


and 


to  use  the  same ;  Held^  that  such  notes  were  for  a  valid 
consideration,  and  were  effectual  for  the  whole  amount. 
Brouwer  V.  Harbeck,  1  Duer,  K  Y.  114.  1852.  Deras- 
mus  V.  Merchants'  Mut.  Ins.  Co.  1  Comst.  N.  Y.  371.  1848. 
Brown  v.  Crooke,  4  Comst.  N.  Y.  51.  1851.  Baker  v. 
Cotter,  45  Me.  236.  1858.  Rowland  v.  Meyer,  3  Comst. 
N.  Y.  290.     1850. 

§  9.  A  premium  note  in  advance  was  given,  made 
payable  to  the  maker's  order,  and  endorsed  to  the  Croton 
Insurance  Company.  The  board  of  trustees  passed  a  res- 
olution authorizing  the  pledge  of  the  assets  of  the  com- 
pany to  raise  money  to  pay  its  debts.  Subsequent  to  said 
resolution  said  note  was  taken  up,  and  two  others  given  in 
lieu  of  it,  and  one  of  the  two  was  pledged  for  money  by  the 
president  of  the  company,  and  an  action  was  brought  on 
it  by  the  assignee.  Defense  was  made  that  the  president 
had  no  authority  to  transfer  th^  note  in  suit,  because  ic 
was  not  in  existence  when  said  resolution  was  passed. 
Held.,  that,  as  the  note  was  given  in  lieu  of  one  which  was 
in  existence  at  the  date  of  the  resolution,  the  president 
had  authority  to  make  the  tiansfer,  if  indeed  any  author- 
ity other  than  his  general  agency  for  tlie  company  was 
necessary.     Crook  v.  ]Mali,  11  Barb.  N.  Y.  205.     1857. 

§  10.  A  ]>remium  note  in  advance  may  be  transferred 
by  the  presid  t  of  an  insurance  company,  acting  as  its 
general  agent,  iii  payment  or  on  account  of  losses;  and 
the  transferee  may  maintain  action  tliereon  against  the 
maker.  Such  a  transfer  cannot  be  avoided  ))y  a  receiver 
subsequently  appointed,  it  w  X  appearing  that  the  transfer 
was  made  in  contemplation  ^^1  insolvency  for  the  purpose 
of  preferring  a  particular  creditor.  Such  a  transfer  l)y  the 
president  does  not  come  within  the  prohibition  of  1  Kevised 
Statutes,  591,  §  8,  of  New  York.  Brouwer  v.  Harbeck,  1 
Duer,  N.  Y.  114.  1852.  Aspinwall  v.  Meyer,  2  Sandf.  N. 
Y.  180.     1848. 

§  11.  Premium  note  in  advance,  i)aid  by  premiums  of 
insurance  by  maker  and  his  friends,  and  note  given  up ; 
Held.,  to  be  a  valid  proceeding,  binding  on  company  and 
its  receiver,  though  not  ratified  by  a  formal  vote  of  the 
directors.  Eramett  v.  Reed,  4  Seld.  N.  Y.312.  U853.  4 
Sandf  N.Y.  229.     1850. 


\ 


u  I 


548 


FBEMIUM    NOTES    IN    ADVANCE. 


§  12.  The  defendant  executed  a  premium  note  to  an 
insurance  company,  whereby  he  agreed  to  pay  the  com- 
pany or  its  treasurer  $10,000,  "in  such  portions  and  at 
such  time  or  times  as  the  directors  may,  agreeably  to 
their  charter  and  by-laws,  require."  The  note  was  re- 
ceived as  a  part  of  the  capital  stock  of  the  company.  The 
directors  afterward  adopted  a  resolution,  under  which  all 
the  assets  of  the  company,  including  the  note  in  question, 
were  transferred  to  the  plaintiff,  in  trust,  that  he  should 
collect  them,  and  apply  the  proceeds  to  the  payment  of 
the  debts  of  the  company ;  ileld^  that  this  resolution  was 
a  requirement  by  the  directors  that  the  note  should  be 
paid,  and  was  a  substantial  compliance  with  the  condition 
upon  which  it  was  made  payable.  Hill  v.  Reed,  1(3  Tarb. 
N.Y.  280.     1853. 

§  13.  Premiuni  notes  in  advance,  oiven  to  mutual  in- 
surance  companies  under  the  provisions  of  tlie  New  York 
statutes  of  1849,  are  absolute  and  payable  without  any 
assessment.  The  company  may  enforce  their  collection  at 
maturity,  and  devote  the  proceeds  to  the  payment  of 
losses,  or  to  investments  in  otlier  securities.  White  v. 
Haii^^it,  16  N.  Y.  310.  18.37.  Bell  v.  MoEhvaiu,  18  How. 
N.Y.P.  150.     1859. 

§  14.  See,  also,  as  to  validity  of  premium  notes  in  ad- 
vance, power  of  company  to  transfer,  iC'C,  the  following 
cases:  Ilolbrook  v.  Bassett,  5  Bosw.  X.  Y.  147.  1859. 
Scott  V.  Johnson.  5  Bosw.  N.  Y.  213.  1859.  Smith  v. 
Hall,  5  Bosw.  N.  Y.  319.  1859.  Nelson  v.  Wellington,  5 
Bosw.  N.  Y.  178.  1859.  Brookmau  v.  Metcalf,  5"  Bosw. 
N.  Y.  429.  1859.  New  York  Exeli.  Co.  v.  De  Wolf,  5 
Bosw.  N.  Y.  593.  1859.  ^larine  Bank  v.  Clements,  0 
Bosn.  N.  Y.  lOG.  18()().  ;Manne  Bank  v.  Vail,  0  Bosw. 
N.  Y.  421.  1860.  Merchants'  Bank  v.  McCall,  6  Bosw. 
N.  Y.  473.     1860. 

§  15.  In  an  action  on  a  premiuni  note  in  advance, 
given  to  a  company  which  divides  its  bu.^iness  into  two 
departments,  a  stock  and  a  mutual ;  it  is  not  a  defense  that 
there  were  no  unpaid  losses  in  the  mutual  (.lepartment. 
Tuckerman  v.  Brown,  11  Abb.  N.  Y.  389.     1860. 

§  16.    A  premium  note  given  to  a  mutual  insurance 


EREMIUM    NOTES    IN    ADVANCE. 


549 


company  as  a  part  of  the  capital  stock,  under  the  act  of 
1849,  in  New  York,  and  made  payable  "in  such  portions 
and  at  such  time  or  times  as  the  directors  "  may  require, 
is  in  compliance  with  the  5th  section  of  said  act,  requiring 
all  such  notes  to  be  made  payable  at  the  end  of  or  within 
twelve  months  from  the  date  thereof,  as  it  is  in  such  form 
that  payment  could  be  required  within  the  period  speci- 
fied by  the  statute.  The  statute  of  limitation,  applied  to 
such  note,  does  not  commence  to  run  until  payment  has 
been  required  bv  the  company  or  its  receiver.  Rowland 
V.  Edmonds,  33  iBarb.  N.  Y.  433.  1861.  But  see  contra^ 
Bell  v.  Yates,  33  Barb.  N.  Y.  627.     1861. 

§  17.  The  by-laws  of  a  mutual  insurance  company 
provided  that  any  person  giving  an  "  advance  note,"  should 
become  a  member  thereof,  and  that  the  directors  might 
give  up  any  or  all  of  the  advance  notes,  whenever  they 
should  deem  it  for  the  interest  of  the  company  to  do  so. 
The  defendants  gave  the  company  an  advance  note,  speci- 
fying that  it  should  be  subject  to  assessments  "  at  an  equal 
per  cent,  with  all  other  advance  notes."  Held^  that  the 
assessment  was  to  be  made  upon  all  the  advance  notes  re- 
maining uncanceled  at  the  time  it  w^as  made ;  and  that 
the  signers  of  advance  notes  were  liable  for  the  full  amount 
thereof,  if  required  to  pay  the  debts  of  the  company. 
Maine  Mut.  Marine  Ins.  Co.  v.  Swanton,  49  Me.  448.    1861. 

§  18.  An  insurance  company,  although  authorized  to 
receive  notes  •br  a.lvanced  premiums  to  be  written  against, 
and  to  allow  a  certain  interest  thereon,  is  not  authorized 
to  allow  five  per  cent,  on  the  whole  amount,  without  deduc- 
tion for  such  sums  ap  may  be  written  against.  An  agree- 
ment to  that  effect  is  illegal,  and  the  note  cannot  be  recov- 
ered on  by  the  eompf*ny.  But  as  the  statute  does  not 
make  the  note  void,  a  third  person,  receiving  it  before 
it  became  due,  for  a  valuable  consideration  and  with- 
out notice  of  the  illegal  agreement,  will  be  entitled  to 
recover.     Ches]>rough  r.  Wright,  41  Barb.  N.  Y.  28.    1863. 

§  19.  Its  charter  authorized  the  company  to  receive 
prv-^mium  notes  in  advance,  and  declared  that  these  should 
be  the  absolute  property  of  the  company,  and  might  "  be 
used  for  payment  of  losses  and  liabilities  and  for  any  other 


ii 


550 


QUESTIONS    FOR   COURT   AND   JURY. 


purpose  connected  witli  its  business,  *  *  *  and 
shall  not  be  subject  to  any  equitable  claim "  when  in  the 
hands  of  third  persons.  Ileld,  that  this  authorized  a 
transfer  by  the  company  in  absolute  payment  of,  or  as 
security  for,  a  valid  del)t,  and  the  plaintiff  holds  it  free 
of  equities  between  the  maker  and  the  company  to 
whom  it  was  made.  Great  Western  Ins.  Co.  v.  Thayer, 
60  Barb.  633.     1871. 

See  Premium  Notes,  §  27,  50.    Set-ofF,  5. 


QUESTIONS  FOR  COURT  AND  JURY. 

§  1.  Where  plaintiff  effected  an  insurance  on  a  house, 
which  had  been  previously  inMired  by  the  party  from 
whom  plaintiff*  purchased,  and  the  judge  charged  the  jury, 
that  if  assured  knew  that  there  was  a  previous  insurance, 
and  neglected  to  disclose  the  fact  to  the  insurers,  it  was 
such  a  concealment  of  a  fact,  material  to  the  risk,  as  avoided 
the  policy;  IleM,  a  misdirection,  for  which  a  new  trial 
must  l)e  granted,  as  the  question  of  its  materiality  was 
one  of  fact  that  should  have  been  submitted  to  the  jury. 
Tyler  v.  ^tna  Ins.  Co.  12  Wend.  N.  Y.  507.     1834. 

§  2.  Whether  there  has  been  such  misrepresentation 
in  the  descrii)tion  of  a  building  (descril)ed  in  application, 
which  in  this  case  was  held  to  be  representation  merely) 
as  will  av^oid  the  policy,  is  a  question  to  l)e  determined  by 
the  jury.  Farmers'  Ins.  tS:;  Loan  Co.  v.  Snyder,  16  Wend. 
N.  Y.  481.     1836. 

§  3.  The  question,  whether  the  stock  of  goods,  de- 
scribed in  one  policy,  is  the  same  as  tliose  described  in 
another,  is  a  (piestion  properly  for  the  jury  ;  and  their  find- 
ing will  not  ])e  disturbed.  ^Neve  v.  Colum])ia  Ins.  Co.  2 
McMullan,  S.  C.  220.     1842. 

§  4.  Where  j)olicy  provided,  "  that  if  the  risk  should 
be  increased  by  any  means  within  the  control  of  assured, 
or  premises  occupied  so  as  to  render  the  risk  more  hazai'd- 


:  ■ :  ■'  m^. 


QUESTIONS    FOR   COURT   AND   JURY. 


551 


OU8  than  at  time  of  insuring,"  the  insurance  shoukl  be  void ; 
and  it  was  proved  that,  after  the  insurance,  the  building- 
had  been  leased,  that  a  back  building  had  been  put  up 
adjoining,  and  another  building  moved  up  to  the  addition, 
and  that  extensive  repairs  were  going  on  in  the  house  at 
the  time  of  the  fire ;  Held^  that  it  was  not  for  the  court, 
but  for  the  jury  to  determine,  whether  the  risk  had  been 
increased.  Grant  v.  Howard  Ins.  Co.  5  Hill,  N".  Y.  10. 
1843. 

§  5.  Whether  there  has  been  such  a  concealment  of  a 
material  fact  as  will  avoid  the  policy,  is  a  question  to  be 
submitted  to  the  jury.  Sexton  v.  Montgomery  County 
Mut.  Ins.  Co.  9  Barb.  *N.  Y.  191.     1848. 

§  G.  Insurance  was  upon  a  starch  manufactory.  At 
time  of  insurance,  assured  represented  that  they  were 
through  manufacturing  for  the  season,  but  afterwards  had 
a  fire  built  to  expel  the  moisture  from  some  starch  that 
was  left  upon  the  rack,  and  wliilst  so  doing  the  building 
was  destroyed.  Defense  set  up,  that  assured  had  misrep- 
resented, in  saying  that  the  manufacturing  was  through 
for  the  season.  The  jury  were  instructed  that  the  drying 
of  starch  was  a  pai-t  of  the  "  process  of  manufacturing  "  if 
the  same  fires  were  used,  as  in  the  original  process.  Held^ 
that  it  was  not  for  the  court,  but  for  the  jury  to  determine 
whether  such  drving  was  a  "  manufacturing  "  or  not.  Per- 
cival  V.  Maine  M.  M.  Ins.  Co.  33  Me.  '242.     1851. 

§  7.  Whether  there  has  been  an  increase  of  risk  or  not 
is  a  question  of  fact  for  the  jury.  Gamwell  v.  Merchants' 
«fc  Farmers'  Mut.  Fire  Ins.  Co,  VI  Cush.  Mass,  107.     1853. 

§  8.  The  materiality  of  a  fact  concealed,  is  a  question 
for  the  jury ;  and  where  it  consisted  of  a  previous  fire  in 
the  same  building,  it  is  proper  to  instruct  the  juiy,  that 
they  may  consider  the  true  cause  of  the  fire,  and  not  the 
suspicions  or  ))elief  of  the  insured  as  to  the  cause.  Pro- 
tection Ins.  Co.  V.  Harmer,  2  Ohio  St.  (22  Ohio,)  452. 
1853. 

§  9.  Where  an  application  called  for  the  distance  of 
all  buildings  within  ten  rods,  and  stipulated  over  the  signa- 
ture of  assured  at  bottom,  that  "  all  exposures  within  ten 


! 


552 


QUESTIONS   FOR   COURT   AND  JURY. 


rods  are  mentioned  ; "  Held,  that  it  was  error  to  submit  to> 
the  jury  the  question  as  to  whether  certain  buildings 
within  that  distance  were  "  exposures ; "  that  the  company 
had  reserved  the  right  to  pass  upon  the  extent — or  whether 
at  all — ^the  risk  would  be  increased  by  them,  and  to  fix  the 
rate  of  insurance  accordingly.  Chaffee  v.  Cattaraugus 
County  Mut.  Ins.  Co.  18  N.  Y.  376.     1858. 

§  10.  "Where  a  misrepresentation  by  the  assr.red  of 
his  title,  if  material  to  the  risk,  will  avoid  the  policy,  the 
question  of  materiality  is  for  the  jury.  Mutual  Ins.  Co. 
V.  Deale,  18  Md.  26.     1861. 

§  11.  .  If  the  notice  of  a  loss  to  the  insiu'ers  is  sufficient 
in  form,  it  is  for  the  jury  to  detennine  whether  it  is  suffi- 
cient in  substance.  Witherell  v.  Maine  Ins.  Co.  49  Me. 
200.     1861. 

§  12.  The  sufficiency  of  the  preliminaiy  proofs  of  loss,, 
is  a  question  for  the  court.  Commonwealth  Ins.  Co.  v. 
Sennett,  41  Penn.  St.  161.     1861. 

§  13.  The  jury  must  determine  from  the  evidence  the 
degree  of  particularity  in  the  account  of  the  loss  sent  to 
the  insurance  company  the  nature  of  the  case  admitted  of. 
Franklin  Fire  Ins.  Co.  v.  Updegraff,  48  Penn.  St.  350. 
1862. 

§  14.  It  is  for  the  jury  to  detennine,  as  a  question  of 
fact  fi'om  the  evidence,  whether  the  merchandise  insured 
was  destroyed  in  the  "  building  "  described  in  the  policy. 
Franklin  t'ire  Ins.  Co.  v.  Updeirraff,  43  Penn.  St.  350. 
1862. 

§  15.  Where  statements  in  an  application  are  cove- 
nanted to  be  true,  so  far  as  the  same  are  known  to  the  ap- 
plicant and  material  to  the  risk,  the  question  as  to  then* 
materiality  and  as  to  the  knowledge  of  the  applicant  may 

roperly  be  left  to  the  jury.     Garcelon  v.  Hampden  Fire 

ns.  Co.  50  Me.  580.     1862.' 

§  16.  A  limitation  or  condition  in  a  policy  of  insur- 
ance intended  for  the  -benefit  of  the  corporation  may  be 
waived  by  it,  and  the  fact  of  waiver  is  a  question  for  the 
jury,  Coursin  v.  Pennsylvania  Ins.  Ct».  46  Penn.  St.  323.. 
1863. 


I 


QUESTIONS  FOR  COURT  AND   JURY. 


553 


;d  of 
',  the 
.  Co. 


§  17.  Whether  spirituous  liquors  were  included  in 
the  term  "  groceries,"  as  used  in  a  particular  policy ;  Held^ 
a  question  of  fact  for  the  jury.  Niagara  Fire  Ins.  Co.  v. 
DeGraff,  12  Mich.  124.     1868. 

§  18.  Where  the  defense  to  an  action  on  an  insurance 
policy  is,  that  the  insured  in  procuring  the  policy  repre- 
sented that  the  value  of  the  property  was  much  more  than 
it  in  fact  was ;  Ileld^  that  whether  there  was  any  misrepre- 
sentation as  to  the  value  of  the  property,  and  if  so,  whether 
it  was  material  to  the  contract,  was  a  question  of  fact  for 
the  jury.  Keeler  v.  Niagara  Fire  Ins.  Co.  16  Wis.  523. 
1863. 


§  19.  Whether  a  false  representation  was  or  was  not 
wilful  and  fraudulent,  is  a  question  of  fact  for  the  jury, 
under  proper  instruction  as  to  the  effect  of  such  a  repre- 
sentation. Cumberland  Valley  Mut.  Protection  Co.  v. 
Mitchell,  48  Penn.  St.  374.     18C4. 

§  20.  The  question  of  identity  of  the  property,  where 
the  description  is  different  in  two  policies,  is  for  the  jury ; 
where  there  is  no  dispute  as  to  identity,  but  the  question 
is  whether  the  terms  of  the  different  policies  are  the  same, 
this,  being  a  subject  of  comparison  betv;een  writings,  is 
for  the  court.  Mitchell  v.  Lycoming  Mut.  Ins.  Co.  51 
Penn.  St.  402.     1865. 

§  21.     Where  there  was  an  application  and  insurance 

on  goods  in  a  house  described,  and  another  application  and 

insurance  on  a  house  also  describer.  which  latter  house 

was  burned ;  there  being  some  evidence  as  to  goods  being 

insured  in  the  latter  house ;  Held,  that  it  was  a  question 

for  the  jury  whether  the  goods  burned  w«  re  or  not  covered 

by  the  policy.     Beatty  v.  Lycoming  County  Ins.  Co.  52 

Penn.  St.  456.     1866. 

» 

§  22.  Whether  a  disclosure  of  the  interest  of  an  as- 
sured was  material  to  the  risk  incurred,  and  would  have 
enhanced  the  premium,  is  a  question  of  fact  for  the  juiy. 
Insurance  Co.  v.  Chase,  5  Wall.  S.  Ct.  U.  S.  509.     1866. 

§  28.  Whether  the  description  in  a  policy  covers  or 
fairly  describes  the  property  intended  to  be  insured,  is  a 


:  I 


554 


QUESTIONS   FOR   COURT   AND   JURY. 


f 


matter  of  fact  for  the  jury  to  determine,  and  the  terras  of 
the  policy  are  to  be  reasonably  construed  with  reference 
to  the  whole  subject-matter.  Tessou  v.  Atlantic  Mut.  Ins. 
Co.  40  Mo.  33.     1867. 

§  24.  Paj^ers  put  in  evidence  as  impoi-ting  a  contract 
to  waive  preliminaiy  proofs,  are  to  be  interpreted  by  the 
court ;  but  when  put  in  simply  as  evidence,  with  other 
testimony,  the  jury  must  decide  if  there  is  a  waiver. 
Davis,  Hackett  &  Co.  v.  AVestern  Mass.  Ins.  Co.  8  R.  I. 
277.     186C. 

§  25.  Reasonable  time  is  often  a  question  for  the 
court — e.  (/.,  as  notice  of  dishonor  of  a  note,  notice  to  quit 
by  landlord ;  but  when  the  question  depends  on  numerous 
circumstances  "svhich  would  seldom  be  the  same,  it  may  be 
left  to  the  jurv.  Davis,  Hackett  6z  Co.  v.  Western  Mass. 
Ins.  Co.  8  R.  I.  277.     1860. 

§  20.  Whether  certain  acts  or  omissions  increase  the 
lisk,  is  a  question  for  the  jury.     Le  Roy  v.  Park  Fire  Ins. 

Co.  39  N.  Y.  50.     1808. 

§  27.  The  fact  of  furnishing  proofs  of  loss  and 
whether  furnishe«l  in  time,  are  questions  for  the  jury ; 
their  sufficiency  is  for  the  court.  Citizens'  Fire  Ins.  Co.  v. 
Doll,  35  Md.  89.     1871. 

§  28.  Practice  under  the  Miimesota  Code,  as  to  re- 
forming a  policy  in  reference  to  questions  for  court  and 
juiy.     Guernsey  v.  Am.  Ins.  Co.  17  Minn.  104.     1871. 

See  Agent,  §  43,  46,  92.  Alienation,  69.  Alteration,  1.  4,  5.  Applica- 
tion, 8,  32,  50.  Arl)itration  and  Appraisement,  10.  Assessments,  28.  By- 
Laws  and  Conditions,  11.  Certificate,  13,23.  Concealment,  12.  Construc- 
tion, 12.  Description  of  Property  Insured.  6,  28.  Distance  of  Other  Build- 
ings, 11,  14,  22.  EncumbraTice,  19,  20.  Evidence,  4,  93.  False  Swearing, 
20,  22,  25.  Foreign  Ins.  Cos.  17.  Increase  of  Risk,  23.  Interest  in  Policy, 
22.  Limitation  Clause,  18.  Ncxv^  Trial,  7.  Notice  of  Loss,  5,  29,  38.  Other 
Insurance,  64,  136.  Parol  Contract,  15,  19.  Parol  Evidence,  37.  Pleading 
and  Practice,  58.  Preliminary  Proofs,  11,  16, 63,  71.  Premium  Notes  in  Ad- 
vance, 4.  Rebuild,  Repaii  or  Replace.  7.  Title,  7,  36,  74.  Usage,  9.  Use 
and  Occupation,  2,  17,  32,  42,  52,  76.  Value,  9.  Warranty  and  Representa- 
tion, 20,  23.    Watchman,  1,  2.  8. 


ilil 


REBUILD,   REPAIR   OR   REPLACE. 

§^  1.  Interdict  refused  against  an  insurance  company's 
rebuilding  premises  destroyed  by  lire,  pending  an  action 
to  have  it  found  that  a  lease  of  the  premises  was  thereby 
teiTOinated,  and  that  the  insured  was  entitled  to  their 
value.  Bissell  v.  Royal  Exchange  Association  Co.  1  Cases 
in  C3urt  of  Sessions,  165.     1821. 

§  2.  The  company  have  no  right  to  rebuild  or  replace 
articles  lost,  unless  such  right  is  expressly  given  in  the 
policy.     Wallace  v.  Insurance  Co.  4  La.  289. "  1831. 

§  3.  Under  policy  giving  twenty  days  to  elect  to  re- 
place or  rebuild,  there  is  no  jurisdiction  in  equity  to  re- 
strain assured  from  removing  or  disposing  of  his  goods 
(before  the  time  of  expiration  for  the  company  to  replace 
them),  so  that  they  cannot  tell  what  kind  of  goods  they 
were ;  but  it  would  be  proper  evidence  to  suljmit  to  the 
jury,  and  would  authorize  them  to  presume  that  the  state- 
ment of  the  loss  was  in  bad  faith.  New  York  Fire  Ins. 
Co.  V.  Delavan,  8  Paige,  N.  Y  418.     1840. 

§  4.  Policy  provided  that  insurers  might  rebuild  or 
replace  the  property  lost  or  destroyed,  with  other  of  the 
like  kind  or  quality,  or  pay  the  money,  at  their  election, 
within  sixty  days  after  loss.  After  the  dwelling  insured 
by  this  policy  had  been  destroyed,  the  assured  endorsed 
on  the  policy,  "  Pay  the  loss  under  the  within  policy  to 
Joseph  A.  Tolman,"  which  was  assented  to  by  the  presi- 
dent of  the  company.  The  company  then  rebuilt  the- 
house,  and  plaintiff  brought  suit  on  the  policy,  for  the 
amount  of  the  policy  in  money ;  Held^  that  the  order  ujion 
the  policy,  and  assent  of  the  company,  did  not  bind  the 
company  to  pay  the  money  absolutely,  but  only  operated 
as  an  assignment  to  Tolman  of  the  assured's  claim  under 
the  policy,  without  affecting  in  the  least  the  light  of  the 
company  to  replace  the  building,  or  to  pay  the  amount  of 
the  loss  in  money,  at  their  electicm,  accordnig  to  the  terms 
of  the  policy ;  and  the  company  having  replaced  the  build- 
ing the  action  could  not  be  maintained.  Tolman  v.  Man- 
ufacturer's Ins.  Co.  1  Cush.  Mass.  73.     1848. 


1 


I 


, 


556 


REBUILD,  REPAIR   OR   REPLACE. 


§  5.  Policy,  on  stock  of  stationer  in  Edinburg,  in  a 
London  company,  with  clause  giving  company  the  option 
to  pay  or  reinstate.  The  fire  occurred  April  13;  the 
statement  of  loss  was  filed  April  23 ;  and  on  tne  2  2d  May, 
after  a  variety  of  negotiations  for  a  settlement,  the  com- 
pany intimated  their  election  to  reinstate;  Held^  that 
there  had  been  no  such  delay  as  to  bar  the  company  from 
exercising  their  election  to  settle  in  this  way.  Suther- 
land V.  Society  of  the  Sun  Fire  Ofllce,  14  Cases  in  the 
Court  of  Sessions,  N.  S.  775.     1852. 


§  6.  An  insurance  policy  for  $3,000,  on  machineiy, 
boimd  the  company  to  pay  that  sum  in  case  of  loss  or 
damage  by  fire,  "  unless  they  shall,  within  thirty  days  after 
proof  of  such  loss  or  damage,  furnish  the  insured  with  a 
like  quantity  of  any  or  all  of  the  said  goods,  and  of  the 
same  quality  as  those  injured  by  "the  fire,  or  shall  make 
good  the  damage  or  loss  by  paying  therefor,"  cfec.  Held^ 
1st,  the  company  had  the  right,  under  this  policy,  to  pay 
the  damages  in  money,  or  repair  the  old  machinery,  within 
thirty  days,  so  as  to  make  it  as  good  as  it  was  before  the 
fire ;  2d,  in  covenant  on  this  policy,  the  defendants  may 
show  by  parol,  that,  after  their  liability  to  repair  occurred 
by  their  election  to  do  so,  and  before  the  expiration  of  the 
thirty  days,  they  made  a  valid  arrangement  with  the  as- 
sured, by  which  the  time  for  making  the  repairs  was  ex- 
tended beyond  the  thirty  days ;  and  performance  of  this 
agreement  by  them  discharges  the  covenant ;  3d,  enlarge- 
ment of  the  time  of  performance,  waiver  of  performance 
|by  the  assured,  accord  and  satisfaction,  or  tender  of  per- 
formance after  the  accrual  by  election  of  the  liability  to 
I'epair,  are  good  defenses  to  an  action  on  this  policy ;  and 
larol  proof  is  admissible  to  sustain  them.  Franklin  Fire 
ins.  Co.  V.  Hamill,  5  Md.  170.     1853. 

§  7.  "Where  policy  resei-ved  the  privilege  of  replacing 
property  destroyed  within  a  reasonable  time ;  Held,  in  an 
action  upon  the  policy,  that  the  question  whether  certain 
machinery  insured  had  been  repaired  and  replaced  within 
a  reasonable  time,  was  a  question  for  the  jury,  and  not  for 
the  court,  although  the  facts  as  to  the  length  and  reasons 
of  the   delay   in  furnishing  such  machinery,  were  undis- 


I 


BEBUILD,  BEPAIB  OB  BEPLACE. 


557 


puted.    Haskina  v.  Hamilton  Mut.  Ins.  Co.  5  Gray,  Mass. 
132.     1855. 

§  8.     A  by-law  of  a  mutual  insurance  company  pro- 
vided that  the  company  mi^ht,  within  a  reasonable  time, 
rebuild,  repair,  or  replace,  the  property  lost  or  damaged ; 
that  when  they  elected  to  rebuild  or  repair,  the  assured 
should  contribute  one-third  of  the  expense,  and  give  suffi- 
cient security,  and  that  the  company  "  shall  not  be  liable 
to  any  action  for  the  loss  until  such  security  shall  have 
been  furnished,  or  unless  the  company  shall  neglect  for 
thirty  days  thereafter  to  proceed  to  rebuild,  repair,  or  re- 
place, as  the  case  may  be."    The  property  insured  were 
machines  for  manufacturing  boot  and  shoe  laces,  which 
having  been  destroyed,  the  company  undertook  to  replace, 
and  the  assured  refusing  to  receive  or  accept  them  when 
complete,  brought  an  action  on  the  policy.    Held^  that  the 
by-law  only  suspended  the  right  of  action  on  the  policy 
during  the  time  within  which  the  company  had  a  right  to 
rebuild,  repair,  or  replace  the  property  lost  or  damaged, 
and  if  such  replacing  and  repairs,  commenced  within  the 
thirty  days  aft«r  the  security  had  been  furnished,  had  not 
been  finished  within  a  "  reasonable  time,"  the  action  on 
the  policy  might  be  sustained.     Haskins  v.  Hamilton  Mut. 
Ins.  Co.  5  Gray,  Mass.  432.     1855. 

§  9.  An  insurance  company  who  had  insured  a  house 
from  fire,  with  an  option  to  reinstate  it,  having  elected,  in 
the  event  of  a  fire,  to  reinstate  it,  employed  the  defend- 
ant, a  builder,  to  reinstate  it,  who  u^='^d  the  old  walls  so 
far  as  they  remained;  and  when  he  Lad  finished  all  but  a 
a  little  painting,  gave  one  of  the  insured  a  small  sum  to 
complete  it,  and  got  him  to  sign  a  certificate  that  the 
work  was  complete,  and  then  received  payment  from  the 
company.  The  old  walls  not  bearing  the  weight  of  the 
new  work,  "  bulged."  The  assured  sued  the  company  for 
not  duly  reinstating  the  house,  and  they  defended  the 
action,  without  defendant's  authority,  and  the  assured  re- 
covered damages.  The  company  then  sued  the  builder 
on  his  contract  (the  breach  being  an  insufficient  and  im- 
perfect reinstating),  and  also  for  fraudulent  representa- 
tions, and  for  costs.    The  judge  told  the  jury  %thi      !ie 


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558 


EEBUILD,  REPAIE  OR  REPLACE. 


defendant  was  only  bound  to  put  the  building  as  near  as 
possible  in  the  same  state  as  before  the  fire;  and  they 
found  that  he  had  done  so,  and  that  the  building  was  not 
less  secure  than  before.  At  the  close  of  the  case  the 
plaintiffs  relied  on  the  omission  of  the  painting ;  but  the 
jury  found  that  the  value  was  nominal,  and  that  in  get- 
ting the  certificate  there  was  no  fraud.  The  verdict  was 
entered  for  the  defendant,  the  judge  telling  the  jury,  that, 
in  the  absence  of  any  express  authority  to  defend  the 
former  action,  the  company  could  not  recover  costs ;  Heldy 
that  the  direction  was  right,  and  that  the  plaintiffs  were 
not  entitled  to  a  verdict,  even  for  nominal  damages;  and 
that  no  amendment  could  be  allowed.  Times  Fire  Assur^ 
ence  Co.  v.  Hawke,  5  Hurl.  &  Norm.  Exch.  935.     1859. 

§  10.  Wher'^  a  policy  gives  to  the  assurer  the  right 
of  "  reinstatement"  in  case  of  loss,  at  his  option ;  and  he 
eiects  after  a  loss  to  reinstate,  and  is  proceeding  to  do  so, 
and  the  municipal  authorities  cause  the  building  to  be 
taken  down  as  dangerous ;  the  assured  is  not  thereby  re- 
lieved from  liability,  although  the  dangerous  condition  of 
the  building  was  not  occasioned  by  thS  fire.  Having 
elected  to  reinstate,  he  must  either  do  it  or  pay  damages 
for  not  doing  it.  Brown  v.  Eoyal  Ins.  Co.  1  Ell.  &  Ell.  2 
B.  853.     (102  Eng.  C.  L.)     1859. 

§  11.  A  policy  of  insurance  declared  expressly  in  the 
body  thereof,  that  the  same  was  made  and  accepted  in 
reference  to  the  terms  and  conditions  thereunto  annexed, 
one  of  which  conditions  was  that  in  case  of  any  loss  on  or 
damage  to  the  property  insured,  it  should  be  optional  with 
the  insurers  to  rebuild  or  repair  the  buildings  within  a 
reasonable  time,  on  giving  notice  of  their  intention  to  do 
so,  within  thirty  days  after 'receiving  the  preliminary 
proofs  of  loss.  Within  the  specified  time  after  proof  of 
loss,  the  insurers  served  upon  the  insured  written  notice 
of  their  intention  to  rebuild  the  building  destroyed.  Heldy 
that  no  action  would  lie,  upon  the  policy,  to  recover  the 
amount  of  the  loss,  until  the  neglect  of  the  insurers  to 
comply  with  their  offer,  to  rebuild  within  a  reasonable 
time.  The  insurers  having  elected  to  pay  the  loss  by 
restoring  the  building,  cannot  be  required  to  pay  in  any 


REBUILD,  REPAIR  OR  REPLACE. 


559 


Beals  V.  Home 


«..\.; 


Jo. 


36  Barb.  N.  Y.  614. 


other  way. 
1862. 

§  12.  A  wooden  milding  situated  within  the  fire 
limits  of  Detroit  was  injured  by  fire,  and  by  the  ordinances 
of  that  city  could  not  be  repaired  without  the  consent 
of  the  common  council,  which  was  refused.  The  building 
was  insured  for  $2,000,  and  the  policy  contained  a  clause 
that  in  case  of  loss  or  damage  to  the  property,  it  should 
be  optional  with  the  company  to  rebuild  or  repair  the 
building  within  a  reasonable  time.  The  cost  of  repairing 
the  building  would  be  much  less  than  the  amount  of  the 
insurance,  but  without  leave  to  repair,  the  building  which 
before  the  fire  was  worth  $4,000,  would  be  worth  less 
than  $100.  Held^  that  the  insured  was  entitled  to  recover 
the  whole  insurance,  and  was  not  limited  to  such  sum  as 
would  cover  the  cost  of  repair.  Brady  v.  North  Western 
Ins.  Co.  11  Mich.  425.     1863. 

§  13.  Where  premises  were  insured  in  two  separate 
companies  for  distinct  sums,  and  each  contract  of  insurance 
contained  the  same  stipulations  on  the  subject  of  electing 
to  rebuild,  and  both  companies  united  in  notifying  the  in- 
sured of  their  election  to  rebuild  after  the  loss ;  Held^  that 
the  insured  might  maintain  an  'action  against  such  com- 
panies jointly  or  severally  for  a  breach  of  the  contract  to 
rebuild,  the  rules  of  damages  when  partially  rebuilt  be- 
ing the  cost  of  corhpleting  the  work.  Morrell  v.  Irving 
Fire  Ins.  Co.  33  N.  Y.  429.     1865. 

§  14.  A  policy  of  insurance  contained  a  condition  to 
the  effect  that  it  was  optional  with  the  insurance  company 
in  case  of  loss  to  rebuild  or  repair  the  building  within  a 
reasonable  time,  giving  notice  of  their  intention  to  do  so, 
within  thirty  days  after  service  of  the  preliminary  proofs. 
Immediately  after  a  loss  by  fire,  the  plaintiff  laid  a  new 
foundation,  and  proceeded  to  erect  a  new  brick  building. 
Within  thirty  days  the  defendants  gave  notice  that  they 
availed  themselves  of  the  option,  and  would  rebuild  the 
property.  Held^  that  under  these  aircumstances  the  con- 
tract became  substantially  a  building  contract,  and  an 
action  upon  the  policy  to  recover  the  loss  could  not  be 
sustained.    Beals  v.  Home  Ins.  Co.  36  N.  Y.  522.    1867. 


560 


REBUILD,  BEPAIB  OR  REPLACE. 


§  15.  A  condition  in  the  policy,  that  if  the  insurance 
company  rebuilds  after  a  loss,  the  assured  has  the  right  to 
examine  the  works  by  experts,  can  be  strictly  insisted 
upon ;  and  the  assured  need  not  accept  the  house  without 
tlie  fulfilment  of  the  condition,  although  during  the  prog- 
ress of  the  work  he  made  suggestions  to  the  builder,  and 
caused  him  to  make  corrections  in  it.  Alley n  v.  Quebec 
Fire  Ins.  Co.  11  Lower  Canada,  394.    1861. 

§  16.  The  policy  gave  the  company  an  option  to  re- 
build in  case  of  loss,  on  giving  notice  of  such  intention 
within  thirty  days ;  such  notice  being  given,  the  insurers 
became  only  liable  as  on  a  building  contract,  and  the 
plaintiff  immediately  after  the  loss  having  laid  the  foun- 
dation for  a  ne  v  and  different  building,  and  on  receipt  of 
the  notice  refused  to  allow  the  company  to  rebuild,  and 
proceeded  to  complete  his  building,  having  *  thus  put  it 
out  of  the  company's  power  to  perform  its  contract,  the 
plaintiff*  alone  is  responsible  and  must  be  nonsuited.  (Two 
of  the  eight  judges  have  not  concurred.)  Beals  v.  Home 
Ins.  Co.  36  N.  Y.  522.     1867. 

§  17.  An  insurance  company  electing  to  repair  the 
building,  employed  a  contractor,  and  the  assured  employed 
an  overseer  of  the  work.  The  overseer  was  induced  by 
the  contractor  to  ffive  him  a  certificate  that  the  work  so 
far  was  satisfactorily  done,  on  which  the  company  ad- 
vanced money  to  its  contractor.  Held^  whether  the  over- 
seer had  authority  to  give  such  certificate  or  not,  yet 
there  being  no  certificate  provided  for  in  the  contract  be- 
tween defendant  and  contractor,  and  the  defendant  still 
holding  funds  enough  of  the  contractor  to  indemnify  it- 
self, has  not  been  so  damnified  by  the  certificate  that  the 
plaintiff  should  be  estopped  from  showing  the  truth, 
byder  v.  Commonwealth  Fire  Ins.  Co.  52  Barb.  447.   1868. 

Sec  Damages,  §  13,  14,  23,  20,  80,  81.    Interest  in  Policy,  1,  6,  14,     Suc- 
ceBsive  Losses,  3. 


RECEIVERS. 

§  1.  An  order  of  the  court  of  chancery  in  New  York, 
made  upon  a  summary  application,  Held,  not  only  obliga- 
toiy  upon  the  receivers,  out  binding  upon  all  the  creditors 
of  the  corporation,  so  long  as  it  remains  in  full  force.  In 
matter  of  Receivers  of  Globe  Ins.  Co.  6  Paige,  N.  Y.  102. 
1836. 

§  2.  The  receiver  of  a  mutual  insurance  company 
takes  the  place  of  the  directors  in  ascertaining  the  claims 
upon  the  company,  in  determining  upon  the  necessity  of 
an  assessment  and  the  amount  which  each  member  of  the 
company  should  pay  upon  his  note,  with  this  limitation 
upon  his  authority,  that  he  cannot  act  without  the  author- 
ity and  sanction  of  the  court.  But  his  authority  depends 
not  upon  the  order  of  the  court,  but  upon  the  existence  of 
facts  rendering  an  assessment  proper  and  necessary.  The 
necessity  of  sanction  and  authority  of  the  court  is  an  addi- 
tional restriction  and  limitation  of  the  authority,  and  does 
not  dispense  with  the  other  more  important  condition. 
Hence  in  such  proceedings  the  courts  do  not  adjudicate 
the  liability  of  the  company,  or  determine  the  amounts  for 
whi^h  assessments  shall  be  made.  They  merely  sanction 
anu  authorize  the  acts  of  the  receiver,  who  acts  ministeri- 
ally, not  judicially.  Thomas  v.  Whallon,  31  Barb.  N.  Y. 
172.     1857. 

§  3.  Receivers,  from  the  mere  fact  of  the  insolvency 
of  the  company,  cannot  maintain  a  suit,  under  circumstances 
in  which  the  company  could  not  have  done  so,  nor  can 
they  recover  any  greater  amount  than  miffht  have  been 
recovered  by  the  company.  Savage  v.  Medbur>',  19  N.  Y. 
32.  1859.  Devendorfv.  Beardsley,  23  Barb,  k  Y.  656. 
1857. 

§  4.     A  receiver  of  an  insolvent  insurance  company 
has  no  power  to  waive  strict  proof  of  claims  against  th 
company  upon  policies  issued  by  it.     Evans  v.  Trimoun- 
tain  2Iut.  Fue  Ins.  Co.  9  Allen,  Mass.  329.     1804. 
86 


662 


BECEIVEES. 


li 


§  5.  Whether  a  receiver  stands  in  the  place  of  the 
directors  so  as  to  have  the  same  discretionary  power  which 
is  given  them,  quaere.  Sands  v.  Sanders,  26  N.  Y.  239. 
1863  ;  reported  also  in  28  N.  Y.  416  ;  and  Sands  v.  Shoe- 
maker, 2  Keyes,  268.     1865. 

§  6.  Two  receivers  were  appointed  to  close  up  the 
affairs  of  the  corporation ;  one  of  them  misappropriated 
the  funds  to  his  own  profit,  and  the  other  was  guilty  of 
gross  neglect :  they  were  held  jointly  liable.  Common- 
wealth V.  Eagle  Fire  Ins.  Co.  14  Allen,  344.     1867. 

§  7.  Moneys  voluntarily  paid  by  members  of  a  mutual 
company  to  the  receiver,  on  an  assessment,  cannot  be 
recovered  back,  although  the  assessment  be  afterwards 
adjudged  void ;  therefore  the  creditors  of  the  company  can 
recover  of  the  receiver,  and  his  sureties  on  his  neglect  to 
obey  an  order  of  the  court  to  pay  a  dividend.  Wilde  v. 
Baker,  14  Allen,  349.     1867. 

§  8.  The  receivers  may  maintain  a  suit  against  the 
stockholders  to  recover  divid'^nds  received  ')y  them,  when 
the  company  was  insolvent 

They  may  also  restrain  by  injunction  the  creditors 
from  proceeding  individually  against  the  stockholders 
separately  to  recover  such  dividends.  Osgood  v.  Layton, 
3  Keyes,  521.     1867. 

§  9.  The  receiver  of  an  insolvent  company  in  a  suit 
to  recover  dividends  unlawfully  distributed  to  a  stock- 
holder, represents  not  the  company,  but  the  creditors,  who 
are  the  parties  beneficially  interested,  and  therefore  claims 
of  the  stockholder  against  the  company  cannot  be  allowed 
as  a  set-off  in  such  suit.  Contra,  in  suits  where  the  company 
is  the  party  beneficially  interested,  for  in  such  suit  the 
receiver  represents  the  company.  Osgood  v.  Ogden,  4 
Keyes,  70.     1868. 

See  A?9es8racnts.  §  20,  63,  65.    Mutual  Companies  and  Members  of,  1. 
Premium  Notes  in  Adyance,  2,  3,  6,  13. 


RECOVERY  BACK  OF  LOSSES  PAID. 

§  1.  A  loss  having  been  paid  on  a  policy  through 
ignorance  that  it  had  become  void  by  a  subsequent  insur- 
ance contrary  to  express  stipulation  in  policy,  may  be  re- 
•covered  back;  nor  can  the  defendant  resist  the  repayment- 
of  the  money  on  the  ground  that  he  eflfected  the  insurance 
as  the  agent  of  the  real  owner,  if  such  agency  was  not  dis- 
closed at  time  of  procuring  the  policy.  Columbus  Ins. 
Co.  V.  Walsh,  18  Mo.  229.     1853. 

§  2.  If  a  party  insured  caused  the  fire  by  which  his 
goods  were  destroyed,  and  should  by  false  representations 
recover  from  the  insurer,  he  may  be  compelled  to  refund 
what  has  been  paid  him.  McConnell  v.  Delaware  Ins. 
Co.  18  111.  228.     1856. 

§  3.  Insurers  cannot  recover  money  back,  paid  under 
a  policy,  Avhich  might  have  been  avoided  by  reason  of  a 
misrepresentation,  on  the  part  of  the  assured,  or  his  agent, 
if,  at  the  time  of  payment  of  such  loss,  they  knew,  or  upon 
inquiry  might  have  informed  themselves,  of  the  grounds 
u:>on  which  they  might  have  resisted  the  claim;  but  if 
the  loss  was  paid  in  ignorance  of  some  circumstances 
"ttending  the  loss,  and  which  if  known  would  have  en- 
a  bled  them  to  4*esist  the  claim,  the  money  may  be  recov- 
ered back.  Mutual  Life  Ins.  Co.  of  New  York  v.  Wager, 
27  Barb.  N.  Y.  354.     1858. 

§  4.  This  was  an  action  brought  against  the  assured 
and  his  agent  to  recover  back  a  loss  paid.  The  declara- 
tion alleged  that,  at  the  time  of  the  fire,  the  assured  had 
no  interest  in  the  premises;  that  defendants  represented 
that  assured  had  an  interest  in  the  premises,  which  repre- 
sentation was  false  and  known  to  be  ^ilsc  at  the  time. 
Held,  that  it  was  incumbent  on  plaintiffs  to  prove  the  fact, 
according  to  their  allegation,  that  such  representation  was 
made  by  both  defendants,  or  by  one  with  the  knowledge 
and  authority  and  in  behalf  of  the  other,  and  then  to  prove 
that  this  representation  was  false,  by  showing  that  assured 
had  no  interest  in  the  house,  and  sustained  no  loss  by  its 


564 


REFORM    OF    POLICY. 


being  burnt,  and  thereby  wronfffully  obtained  the  pay- 
ment of  the  loss  not  due.  Berkshire  Mut.  Fire  Ins.  Co.  v. 
Sturgis,  13  Gray,  Mass.  lit.     1859. 


See  Contribution,  §  15. 


REFORM   OF  POLICY. 

§  1.  Memorandum  for  policy  on  "  grist-mill "  handed 
to  company,  who  executed  policy  on  "  mill-house,"  which 
insured  carried  off  without  examination.  Policy  corrected 
80  as  to  conform  to  memorandum.  Phoenix  Fire  Ins.  Co. 
V.  Gurnee,  1  Paige,  N.  Y.  278.     1828. 

§  2.  Where  the  policy  delivered  to  assured  differed 
in  its  terms  fi'om  the  agreement  for  insurance,  and  it  ap- 
peared that  the  clerk  received  the  policy,  placed  it  in  the 
safe,  without  any  examination  on  the  part  of  the  assured, 
then  or  afterwards,  until  the  occurrence  of  the  loss ;  Heldy 
that  there  was  no  such  acceptance  of  the  policy  by  the  as- 
sured, as  would  prove  that  they  had  waived  the  original 
contract,  or  taken  this  policy  as  a  consummation  of  it,  and 
as  they  still  held  the  original  agreement  in  writing,  they 
might  enforce  it  in  equity.  Franklin  Fire  Ins.  Co.  v. 
Hewitt,  3  B.  Monroe,  Ky.  231.     1842. 

§  3.  Where  agreement  for  policy,  and  policy  as  writ- 
ten, vary;  or  where  mistake  has  been  made  by  agent  of 
insurers ;  a  court  of  equity  will  compel  a  performance  of 
original  agreement,  and  correct  the  mistake.  Franklin 
Fire  Ins.  Co.  v.  Hewitt,  3  B.  Monroe,  Ky.  231.     1842. 

§  4.  Where  in  an  application  for  insurance  on  a  mill, 
to  which  applicant  had  only  the  equitable  title,  and  which 
was  encumbered  to  the  amount  of  $800,  but  all  the 
facts  were  duly  disclosed  to  the  agent,  who  filled  up  the 
application,  and  inserted  that  "  assured  was  the  owner  of 
the  mill  and  that  premises  were  not  encumbered,"  and 
afterwards  communicated  the  true  state  of  title  to  the 
company  when  sending  them  the  application  and  premium 


BEFOEM   OF   POLICY. 


565 


note,  and  the  company  afterwards  made  assessments  on 
assured,  witli  a  knowledge  of  these  facts;  Held^  that  a 
<;ourt  of  chancery  had  power  to  reform  the  contract  and 
grant  relief.  Harris  v.  Columbia  County  Mut.  Ins.  Co.  18 
Ohio,  116.     1849. 

§  5.  Where  bill  is  filed  to  compel  issue  of  policy  on 
a  contract  previously  made,  proof  of  such  contract  must 
be  conclusive.  If  matter  left  in  doubt,  on  the  whole  evi- 
dence, bill  will  be  dismissed.  Suydam  v.  Columbus  Ins. 
Co.  18  Ohio,  459.  1849.  Neville  v.  Merchants'  and  Man- 
ufacturers' Mut.  Ins.  Co.  19  Ohio,  452.     1850. 

§  6.  The  policy  was  filled  up  in  the  name  of  A.  Rex, 
mortgagee,  of  Philadelphia.  The  mortgage  was  made  to 
him,  but  long  before  the  insurance  had  been  assigned  to 
A.  Rex,  of  Lebanon  county.    The  application  produced 

was  A.  Rex,  of county,  in  the  handwriting  of  an 

agent  of  the  insurers.  The  preliminary  proofs  weie  by  A. 
Rex,  of  Lebanon  county,  and  were  received  by  the  com- 
pany without  objection.  The  referee,  in  making  his 
award,  decided  that  the  intention  was  to  insure  A.  Rex, 
of  Lebanon,  and  that  the  addition  of  "  Philadelphia  "  was 
a  clerical  error,  that  might  be  rejected.  Held^  that  there 
was  no  such  plain  mistake  of  fact  or  law,  in  such  finding 
of  referee,  as  to  justify  the  setting  aside  the  award.  Rex 
V.  Insurance  Co.  2  Philadelphia,  ra.  357.     1858. 

§  t.  Where  a  court  of  equity  is  asked  to  reform  a 
written  contract,  on  the  ground  of  mistake,  the  mistake 
charged  must  be  proved  m  the  most  clear  and  unequivo- 
cal manner ;  the  proof  must  be  free  from  all  I'easonable 
doubt,  almost,  if  not  quite  incontrovertible,  and  clear  and 


overwhelming. 
260.     1860. 


National  Fire  Ins.  Co.  v.  Crane,  16  Md. 


§  8.  An  error  in  the  description,  which  crept  into  the 
policy  through  the  mutual  mistake  and  misunderstanding 
of  the  parties,  was  held  in  the  Supreme  Court  not  to  be 
ground  for  decreeing  a  correction,  the  policy  in  such  case 
correctly  representing  the  understanding  of  the  parties, 
but  the  understanding  being  erroneous.  New  York  Ice 
Co.  v.  North  Western   Ins.  Co.  10  Abb.  Pr.  N.  Y.  34. 


666 


REFORM   OF    POLICY. 


1860.  But  on  appeal,  Held^  that  such  a  mistake  should 
be  corrected.  New  York  Ice  Co.  v.  North  Western  Ins. 
Co.  23  N.  Y.  357.     1861. 

§  9.  The  pcJicy  stipulated  that  the  defendants  "  do 
insure  William  Loiighurst  (mortgagee),  Dubuque,  Iowa, 
against  loss,"  <fec.  The  petition  averred  that  the  interest 
of  L.  was  a  mechanic's  lien ;  that  the  term  "  mortgagee," 
in  the  policy,  was  intended  to  describe  that  interest ;  that 
the  nature  of  the  interest  was  made  known  at  the  time 
of  the  application,  and  was  misdescribed  by  mistake  of  the 
agent  of  the  defendants,  w^ho  said  that  the  description  w&s 
sufficient  to  indicate  the  real  interest.  Issue  was  taken 
upon  these  averments,  nnd  a  stipulation  was  filed,  signed 
by  the  parties,  that  any  evidence,  to  correct  any  mistake 
in  the  terms  of  the  policy  sued  on,  which  could  be  given 
in  a  proper  chancery  proceeding,  might  be  introduced  in 
this  proceeding.  Held,  that  the  policy,  and  testimony 
showing  the  mistake  and  facts  averred,  were  competent 
and  admissible  in  evidence  under  the  pleadings  and  stipu- 
lation ;  oven'uling  the  objection  taken,  that  the  mistake 
alleged,  consisting  in  the  supposition  that  the  term  "  mort- 
gagee "  would  describe  a  mechanic's  lien,  was  a  mistake, 
not  of  fact,  but  of  law,  and  could  not  therefore  be  corrected. 
Stout  V.  City  Fire  Ins.  Co.  of  New  Haven,  Supreme  Court 
of  Iowa,  June  Teim,  1861. 

§  10.  The  defendants  having  issued  a  policy  to  A. 
upon  property,  which,  in  fact,  belonged  to  B.  his  wife,, 
were  asked  to  correct  this  error,  and  to  make  the  loss  pay- 
able to  the  wife's  mortgagee ;  and  their  secretary  merely 
indorsed  a  memorandum  that  the  loss,  if  any,  was  payable 
to  the  mortgagee.  The  mortgagee  having  accepted  the 
policy  with  this  endorsement,  and  without  a  correction  of 
the  Tviistake  in  the  name  of  the  assured ;  Held,  that  he  could 
not  recover,  and  that  it  was  too  late,  after  a  loss,  to  alter 
or  reform  the  policy.  Solms  v.  Rutgers  Fire  Ins.  Co.  8 
Bosw.  N.  Y.  578.     1861. 

§  11.  Where  a  mortgagee  applied  for  insurance 
through  the  local  agent  of  an  insurance  company,  intend- 
ing to  procure  an  insurance  of  his  mortgage  interest  and  so 
stating  to  the  agent,  but  the  agent  drew  the  application  as 


REFORM   OF    POLICY. 


567 


for  an  insurance  on  the  property  itself,  in  the  name  of  the 
mortgagor  and  as  his  property,  the  amount  to  be  payable 
in  case  of  loss  to  the  mortgagee ;  and  so  made  the  applica- 
tion and  had  the  policy  so  issued  in  the  belief  that  such 
was  the  proper  legal  mode  of  effecting  an  insurance  on  the 
mortgage  interest ;  Held^  that  the  mistake  could  be  cor- 
rected by  a  court  of  chancery  although  it  was  one  of  law 
and  not  of  fact.  Woodbuiy  Savings  Bank  v.  Charter  Oak 
Ins.  Co.  31  Conn.  517.     1863. 

§  12.  Where  application  was  made  to  an  agent  of  an 
insurance  company  authorized  to  take  risks,  for  a  policy 
upon  a  mechanic's  lien  interest  in  real  estate,  and  a  policy 
was  issued  in  which  the  interest  of  the  assured  was  de- 
scribed as  that  of  a  mortgagee,  both  parties  belie'^ng  that 
the  description  embraced  the  interests  of  a  mechanic's  lien ; 
Held,  that  the  contract  would  be  so  reformed  in  equity  as 
to  make  it  express  the  real  intent  of  the  parties.  Long- 
hurst  V.  Star  Ins.  Co.  19  Iowa,  364.     1865. 

§  13.  To  aflford  grounds  for  reforming  a  policy  for  a 
mistake,  the  mistake  must  appear  to  have  been  mutual. 
Cooper  V.  Farmers'  Mut.  Fire  Ins.  Co.  50  Penn.  St.  299. 
1865. 

§  14.  A  court  of  equity  will  reform  a  policy  or  other 
written  contract,  upon  parol  evidence,  when  the  agreement 
really  made  between  the  parties  has  not,  through  accident 
or  mistake,  been  correctly  incorporated  into  the  written 
instrument ;  but  both  the  agreement  and  the  mistake  must 
be  made  out  by  the  clearest  evidence,  according  to  the 
understanding  of  both  parties  as  to  what  the  contract  was 
intended  to  be.  The  court  cannot  supply  an  agreement 
that  was  never  made.  Tesson  v.  Atlantic  Mut.  Ins.  Co.  40 
Mo.  33.     1867. 

§  15.  If  the  reformation  of  an  instrument  is  desired, 
it  must  be  asked  for  in  the  complaint,  not  in  the  reply. 
That  a  mistake  of  the  agent  in  writing  responses  to  ques- 
tions would  not  entitle  to  reformation  of  the  contract,  un- 
less it  is  shown  that  the  company  did  not  accept  the  risk 
on  the  faith  of  this  warranty.  Cox  v.  -^tna  Ins.  Co.  29 
Ind.  586.     1868. 


568 


REFORM   OF    POLICY. 


! 


! 


I 


§  16.  The  applicant  for  insurance  stated  that  he 
owned  the  goods  jointly  with  another,  and  wished  the  in- 
terest of  both  insured ;  the  agent  said  it  was  not  necessary 
to  put  both  names  in  the  policy.  The  policy  was  issued 
in  the  name  of  one,  a  premium  for  the  whole  lieing  paid. 
Heldy  this  was  such  evidence  of  mistake  in  the  agent  that 
a  chancellor  could  decree  a  reformation  of  the  policy ;  that 
there  being  no  equity  court  in  this  State,  the  correspond- 
ing remedy  always  is  to  admit  the  parol  evidence,  though 
it  may  vary  the  legal  effect  of  the  ^vriting,  and  therefore 
the  whole  mterest  may  be  recovered  in  the  name  of  the 
one  insured.  Manhattan  Ins.  Co.  v,  Webster,  50  Pa.  St. 
227.     1868. 

§  17.  Agent  of  certain  companies,  on  a  larger  insur- 
ance being  applied  for  than  his  regular  companies  wished 
to  take,  places  the  surplus  amount  with  defendants  for 
whom  they  had  previously  o])tai:aed  insurance,  receiving  a 
commission  therefor,  is  agent  of  tlie  latter,  and  such  agent 
applied  to  for  insurance  in  the  firm  name  by  a  partner, 
agrees  to  give  it,  but  by  mistake  the  policy  is  made  to  the 
partner  alone.  The  knowledge  and  notice  to  the  agent  is 
notice  to  the  company,  and  the  policy  is  to  be  reformed 
by  a  court  of  equity.  Keith  v.  Glol)e  Ins.  Co.  52  111.  518. 
1869. 


§  18.  Suit  to  reform  and  collect  uj-)on  a  policy  "on 
awelling-house,"  on  "household  furniture  therein,"  &c., 
the  word  therein  being  alleged  to  have  been  inserted  by 
mistake,  plaintiff  having  shown  that  he  understood  the 
bargain  otherwise  than  as  -written,  must  show  that  the  de- 
fendant understood  it  the  same  way  that  he  did,  other- 
wise there  being  no  meeting  of  minds,  there  would  be  no 
contract.  C.  representing  himself  as  the  company's  general 
agent,  had  agreed  to  make  the  insurance  in  the  same  way 
as  the  M.  Ins.  Co.  made,  that  is,  upon  the  furniture  any- 
where about^the  fann.  In  filling  up  the  application  C. 
was  the  applicant's  agent ;  the  only  evidence  of  C.'s  au- 
thority was  his  own  statements  at  the  time ;  this  is  not 
sufficient  evidence  of  authority  to  make  his  mistake  the 
company's  mistake,  though  if  he  had  authority  to  make 
a  binding  oral  agreement,  that  agreement  would  not  be 
impaired  by  the  issuance  of  a  policy.    Evidence  of  a  mis- 


RE-INSirRANCE. 


509 


take  must  be  clear  and  satisfactory.     Guernsey  v.  Am.  Ins. 
Co.  17  Minn.  104.     1871. 

§  19.  A  merchant  doing  lousiness  as  agent,  applies  for 
insurance  as  such  agent,  for  tlie  benefit  of  his  principals ; 
but  by  mistake  the  policy  was  issued  in  his  name  alone, 
omitting  the  word  'agent."  Held,  equity  could  reform 
the  policy  and  decree  its  payment  to  its  beneficiaries.  The 
evidence  must  be  the  clearest,  and  the  court  must  be  ex- 
tremely cautious.  The  test  of  sufficiency  of  evidence  must 
be  its  capacity  to  satisfy  the  mind  of  the  court.  Phoenix 
Fire  Ins.  Co.  v.  Hoffheimer,  46  Mississippi,  645.     1872. 

See  Agent,  §  3G.  Construction,  15.  Endorsements,  1.  Evidence,  46.  Lim- 
itation Clause,  24.  Parol  Evidence,  87.  Premium  Notes,  48.  Renewal  ot 
Policy,  1. 


REINSURANCE. 

§  1.  Ev^ery  re-insurance  in  England,  either  by  British 
subjects  or  foreigners,  whether  on  British  ships  or  foreign 
ships,  is  void.  Andree  v.  Fletcher,  5?  Term  Rep.  161,  3 
Term  Rep.  266.     1789. 

§  2.  By  19  George  II,  c.  37,  s.  4,  it  is  not  lawful  to 
make  re-assurance,  unless  the  insurer  be  insolvent,  become 
bankrupt,  or  die ;  in  either  of  which  cases  the  assurer,  his 
executors,  administrators,  or  assigns,  may  make  re-insur- 
ance to  the  amount  of  the  sum  before  assured  by  him,  pro- 
vided it  be  expressed  in  the  policy  to  be  a  re-insurance. 
Andree  v.  Fletcher,  2  Term  Rep.  161 ;  3  Term  Rep.  266. 
1789. . 

§  3.  Re-insurance  is  a  valid  contract  at  the  common 
law,  and  there  is  no  diflference  in  principle  between  re  in- 
surance against  fire,  and  re-insurance  against  loss  by  the 
perils  of  the  sea.  The  risk  assumed  by  the  first  under 
writer,  in  relation  to  the  subject-matter,  consti  tutes  an  in 
surable  interest.    Where  the  act  of  incorporation  gave  to 


670 


RE-INiSURANCE. 


i 


i 


one  company  the  power  "  to  make  contracts  of  insurance 
against  loss  by  fire  of  any  houses  or  buildings  whatsoever, 
and  of  any  goods,  chattels,  or  personal  estate  whatsoever," 
1- >id  to  the  other  the  power  "  to  make  all  kinds  of  insur- 
ance against  losses  by  fire,  of  any  houses  or  buildings  what- 
soever ;  and  also  upon  all  goods,  wares  and  merchandise 
whatsoever;"  Held^  that  a  re-insurance  was  included  in 
such  power,  and  that  the  subject-matter  of  insurance  was 
the  same  in  the  policy  of  re-insurance  as  in  the  original 
insurance,  though  the  interest  was  different.  In  such  con- 
tract, the  condition  of  policy  requiring  preliminary  proofs, 
<fec.,  is  complied  with,  by  the  first  underwriter  transmit- 
ting to  the  re-insurer,  the  proofs  made  by  the  original  as- 
sured. New  York  Bowery  Fire  Ins.  Co.  v.  New  York  Fire 
Ins.  Co.  17  Wend.  N.  Y.  359.     1837. 

§  4.  From  the  nature  of  the  contract  of  re-insurance, 
and  the  want  of  privity  between  the  re-insurer  and  the 
person  first  insured,  it  does  not  come  within  the  rule,  that 
the  principal  creditor  is  in  equity  entitled  to  the  benefit 
of  the  contract  of  re-insurance.  Herckenrath  v.  American 
Mut.  Ins.  Co.  3  Barb.  Ch.  N.  Y.  163.     1848. 

§  5.  The  re-insurer  is  liable  for  the  costs  and  expenses 
incurred  in  a  suit  between  the  original  insured  and  the 
company  re-insured,  if  the  re-insurer  withhold  payment 
until  the  termination  of  such  suit.  New  York  Central 
Ins.  Co.  V.  National  Protection  Ins.  Co.  20  Barb.  N.  Y.  468. 
1854. 

§  6.  Re-assured  can  collect  of  re-insurer  before  pay- 
ment to  the  original  insured ;  and  though  the  company  re- 
insured become  insolvent,  the  re-insurer  is  not  released 
from  payment  in  full,  by  reason  thereof.  Eagle  Insurance 
Co.  V.  Lafayette  Ins.  Co.  9  Ind.  443.  1857.  Home  v. 
Mutual  Safety  Ins.  Co.  1  Sandf.  N.  Y.  137.     1847. 

§  7.  Re-insurers  may  make  every  defense  the  re-in- 
sured could  then  make,  when  loss  remains  unadjusted  be- 
tween re-insured  and  party  originally  insured,  on  the 
terms  and  conditions  of  the  policy ;  and  where  the  re-in- 
sured is  not  liable  on  the  original  policv,  a  recovery  can- 
not be  had  against  the  re-insurer.  Eagle  Ins.  Co.  v.  Jjafay- 
ette  Ins.  Co.  9  Ind.  443.     1857. 


EE-IN8URANCE. 


571 


as- 


§  8.  By  the  terms  of  the  contract  of  November  30, 
1854,  the  defendants  "re-insure  the  American  Mutual  In- 
surance Company,  of  Amsterdam,  upon  the  following 
policies  issued  by  them"  (a  detailed  statement  of  which 
policies  was  embodied  in  and  formed  part  of  the  contract), 
"  loss,  if  any,  payable  to  the  assured  upon  the  same  terms 
and  conditions,  and  at  the  same  time,  as  contained  in  the 
original  policies.  Ke-insured,  from  November  30,  1854, 
twelve  o'clock  at  noon,  to  the  expiration  of  the  policy." 
The  American  Mutual  Insurance  Company  becoming  in- 
solvent subsequent  to  taking  out  the  above  policy  of  re- 
insurance with  the  defendants,  one  of  the  parties  originally 
insured  brought  an  action  to  recover  of  defendants  a  loss 
sustained  by  him.  Held^  that  the  word  "  assured,"  as  used 
in  the  contract  of  re-insurance,  meant  the  party  re-insured, 
and  that  the  plaintiff  had  no  interest  in,  or  lien  upon,  the 
contract  in  question,  and  no  right  to  maintain  an  action 
thereupon ;  that  the  money  which  the  defendants  might 
pay  under  it,  would  form  part  of  the  assets  of  the  com- 
pany, which  insured  plaintiff  originally,  and  from  which 
the  plaintiff  must  l»e  paid  pro  rata  with  the  other  credit- 
ors of  the  insolvent  company.  Held  further^  that  parol 
evidence  to  show  that  the  re-insurance  was  intended  to 
protect  the  parties  originally  insured,  and  that  the  word 
"  assured"  was  used  with  reference  to  that  object,  was  in- 
admissible. Carrington  v.  Commercial  Fire  «fe  Marine  Ins. 
Co.  1  Bosw.  N.  Y.  152.     1857. 

§  9.  The  plaintiffs  had  re-insured  the  original  com- 
pany, and  the  defendants  had  re-insured  the  plaintiffs. 
Heldy  the  plaintiffs  must  do  more  than  show  a  payment ;  it 
is  of  no  importance  that  the  plaintiff  is  itself  a  re-insurer ; 
the  validity  of  the  original  claim  must  be  shown.  The 
preliminary  prSofs  are  not  evidence  of  loss,  but  only  of 
compliance  with  a  condition,  and  the  defendant  receiving 
them  without  objection  to  theii'  sufficiency  is  no  admission 
of  the  loss.  Yonkers  N.  Y.  Fire  Ins.  Co.  v.  Hoffman  Fire 
Ins.  Co.  6  Robertson  (N.  Y.  Sup.  Ct.)  310.     1868. 

§  10.  The  liability  of  a  re-insuring  company  to  there- 
insured  company  is  not  the  full  amount  of  the  re-insuring 
policy,  but  is  the  amoimt  necessaiy  to  be  given  by  the 


572 


EEMOVAL. 


latter  company  in  discharge  of  its  own  liability  to  the 
original  insured.  Illinois  Mut.  Ins.  Co.  v.  Andes  Ins.  Co. 
Sup.  Ct.  of  HI.  June,  1873. 

§  11.  The  re-insuring  policy  contained  this  clause, 
*^  Loss,  if  any,  payable  pro  rata  at  the  same  time  and  in 
the  same  manner  as  the  reinsured  company."  Held,  the 
re-insured  company  having  paid  only  ten  cents  on  the  dol- 
lar in  discharge  of  its  insurance,  the  re-insuring  company 
is  only  lia1)le  to  pay  ten  cents  on  the  dollar  of  the  amount 
of  re-insurance.     lb. 


See  Agent,?  17,33.  Concealmpnt,  4.  Contribution,  G.  Description  of 
Property  Insured,  24.  Interest  in  Policy,  10,  34.  Usage,  5..  Warranty  and 
Representation,  27. 


REMOVAL. 

§  1.  Where  neither  the  stock  of  goods  insured,  nor 
the  house  containing  them,  were  touched  by  fire ;  but  the 
goods  were  damage<i  in  the  removal  of  them,  under  a 
reasonable  apprehension  that  they  would  be  reached  by 
the  flames,  which  had  caught  the  fourth  house  from  that 
of  assured  in  the  same  block ;  Held,  that  the  injury  sus- 
tained by  the  assured  in  the  removal  of  his  goods  was  not 
a  loss  which  was  covered  l)y  his  policies  against  peril  of 
fire.  Hillier  v.  Alleghanv  County  Mut.  Ins.  Co.  3  Penn. 
St.  470.     184G. 

§  2.  Policy  provided,  that  "  in  case  of«the  removal  of 
property  to  escape  conflagration,  the  company  will  con- 
tribute ratably  with  the  assured,  and  other  companies  in- 
terested, to  the  losses  and  expenses  attending  such  act  of 
salvage."  A  fire  originated  in  a  building  adjoining  the  one 
contaming  the  insured  goods,  which  were  removed,  and  in 
removal  part  were  lost,  wet,  stolen,  and  some  burnt.  Held, 
that  the  clause  above,  refen*ed  only  to  the  expenses  of  sav- 
ing what  had  esca2)ed  destruction,  and  that  assured  might 


REMOVAL. 


578 


therefore  recover  the  entire  loss  and  damage  sustained  by- 
such  fire,  and  not  the  proportion  only  which  the  amount 
insured  bore  to  the  whole  value  of  the  goods.  It  seems, 
that  In  the  form  adopted  in  ordinary  policies,  injuries  to 
goods  by  wet,  or  by  goods  being  lost  or  stolen  in  the  con- 
fusion arising  from  the  fire,  and  of  the  destruction,  injury 
or  loss  of  which  the  fire  can  be  said  to  be  the  proximate 
cause,  are  within  the  terms  of  the  policy.  Thompson  v. 
Montreal  Ins.  Co.  6  Upper  Canada,  2  Q.  B.  319.     1849. 

§  3.  The  circumstances,  as  they  existed  at  the  time, 
must  determine  the  necessity  for  removal ;  and  whatever 
loss  or  damage  is  necessarily  sustained  by  such  removal, 
when  the  danger  of  its  destruction  was  so  direct  and  im- 
mediate that  a  failure  to  remove  would  have  been  a  gross 
negligence  on  his  part,  the  insured  is  entitled  to  recover. 
The  fire,  under  such  circumstances,  may  be  regarded  as  the 
proximate  cause  of  any  loss  sustained.  Case  v.  Hartford 
Fire  Ins.  Co.  13  III  676.     1852. 

§  4.  Where  policy  of  insurance  on  a  stock  of  millineiy 
goods,  provided  that,  "when  property  insured  by  this 
company  is  damaged  by  removal  from  a  building  in  which 
it  is  exposed  to  loss  by  fire,  said  damage  shall  be  borne  by 
the  assured  and  the  insurers,  in  such  proportion  as  the 
whole  sum  insured  bears  to  the  whole  value  of  the  prop- 
erty insured,  of  which  proof  in  due  form  shall  be  made  by 
the  claimant ; "  and  one  tenement  of  the  building  contain- 
ing the  property  insured  was  on  fire,  and  part-  of  the  in- 
sured stock  was  burnt,  and  balance  removed ;  Held,  that 
the  amount  of  the  loss  and  damage  on  goods  removed  must 
be  borne  by  the  insured  and  insurers,  in  such  proportion 
as  the  whole  sum  insured  bore  to  the  whole  value  of  the 
property  at  the  time  of  a  loss.  Wilson  v.  Peoria  Marine 
&  Fire  Ins.  Co.  5  Minn.  53.     1861. 

§  5.  Losses  in  removing  goods  from  an  approaching 
fire,  though  not  yet  caught  in  the  building  where  the  goods 
are,  whether  bv  theft,  loss,  or  destruction,  is  to  be  borne 
by  the  insurers.    Agnew  v.  Ins.  Co.  3  Phila.  Kep.  193.   1858. 

§  6.  The  damage  and  expense  caused  by  removing 
the  insured   property  from  an  apparently  imminent  do- 


574 


RENEW^AL   OF    POLICY. 


struction  by  fire,  though  it  was  not  in  fact  burned,  is  covered 
by  the  policy.  White  v.  Republic  Fire  Ins.  Co.  57  Me.  91. 
1869. 

§  7.  An  insurer  against  fire  only  is  liable  for  goods 
stolen  during  a  removal  to  avoid  impending  loss  by  an 
adjoining  fire,  and  a  demand  by  the  local  agent  for  such 
removal,  though  outside  his  authority,  is  strong  evidence 
of  the  propriety  of  the  removal.  A  clause  in  the  policy 
that  the  company  "  will  not  be  liable  for  damage  to  goods 
contained  in  the  show-windows,  when  the  damage  is  caused 
by  the  light  in  the  window ;  nor  shall  the  company  be  lia- 
ble for  loss  by  theft,"  applies  only  to  theft  from  the  show- 
windows,  not  theft  in  the  necessary  removal  in  trying  to 
avoid  a  fire.  Leiber  v.  Liverpool,  London  &  Globe  Ins. 
Co.  6  Bush.  639.     1869. 

See  Other  Insurance,  §  17.    Parol  Contract,  2.    Risk,  14,  18.    Theft,  4. 
Use  and  Occupation,  47.    What  Property  is  Covered  by  Policy,  15. 


RENEWAL  OF  POLICY. 

§  1.  A  policy  under  seal  contained.clause  that  it  might 
be  renewed  by  timely  payment  of  the  preiuiuni.  The  in- 
surance was  continued  from  year  to  year  by  endorsements 
on  the  policy,  which  were  not  under  seal,  changing  the 
dates,  and  also  amounts  to  be  insured.  Held,  that  those 
endorsements  did  not  continue  the  instranient  as  a  spe- 
cialty, and  that  an  action  for  covenant  would  not  lie  to 
recover  for  a  loss  incurred,  after  the  exj)iration  of  tlie  fiist 
term ;  but  opinion  is  given  by  Gibson,  C.  J.,  that  plaintiff 
might  have  demanded  a  policy  in  conformity  to  the  clause, 
and  have  maintained  an  action  for  a  breach  of  it.  Luciaui 
V.  American  Ins.  Co.  2  Whart.  Pa.  167.     1836. 

§  ii  Where  a  policy  was  for  $1,800  on  a  grist-mill, 
and  $700  on  machinery,  and  successive  renewals,  year 
after  year,  kept  up  the  specifications  noted  in  the  renewal 
receipts  until  1847,  when  the  agent  was  changed,  and  after 
that  the  renewal  receipts  were  in  general  terras,  without 
specification  as  before ;  Held^  that  the  intention  was  to  re- 


RENEWAL    OF    POLICY. 


575 


new  in  general  tierms,  without  any  distribution  of  the  risk. 
Driggs  V.  Albany  Ins.  Co.  10  Barb.  N.  Y.  440.     1851. 

§  3.  In  the  written  part  of  the  policy,  "fire  and  ice" 
were  excluded  from  the  risks  assured  by  the  company. 
The  policy  was  renewed  by  an  endorsement,  in  which  it 
was  stated,  that  it  is  "  understood  that  the  assured  is  not 
entitled  to  claim  for  any  loss  or  damage  arising  from  ice," 
and  was  afterwards  renewed  by  another  endoreement,  as 
follows  t  "  The  within  policy  is  renewed  for  one  month  for 
the  sum  of  $3,000,  on  brushes,  as  within  described."  Held^ 
that  this  last  renewal  applied  to  the  original  policy,  in 
which  losses  by  "  fire  and  ice  "  were  excepted,  and  not  to 
the  said  policy  as  renewed  by  the  first  endorsement,  and 
in  which  *'  ice  "  only  was  excepted ;  and  therefore  assured 
could  not  recover  for  a  loss  by  fire  occurring  subsequent  to 
the  second  renewal.  Honnick  v.  Phoenix  Ins.  Co.  22  Mo. 
82.     1855. 

§  4.  If  a  company  sees  fit  to  renew  a  policy  after  it 
has  full  knowledge  of  the  risk,  any  misrepresentations  con- 
tained in  the  original  application  must  be  deemed  to  be 
waived ;  and  the  company  are  bound  by  the  policy. 
Witherell  v.  Maine  Ins.  Co.  49  Me.  200.     18G1. 

§  5.  Where  renewals  of  a  policy  originally  issued  to 
a  party  have  been  granted  after  his  decease  to  his  executors, 
without  inquiry  or  representations,  the  company  must  be 
held  to  have  insured  such  interest  in  the  property  as  had 
become  vested  in  the  executors  by  the  will,  and  by  their 
acts  as  executors.  Phelps  v.  Gebhard  Fire  Ins.  Co.  9 
Bosw.  N.  Y.  405.     1862. 

§  6.  Where  an  insui'ance  company  with  knowledge 
of  the  facts  accepts  from  the  assured  the  premium  for  a  re- 
newal, and  renews  the  insurance,  it  will  be  deemed  to 
have  declared  the  contract  of  insurance  to  be  valid,  and  to 
have  waived  a  forfeiture,  if  any  has  occurred  by  reason  of 
the  omission  of  the  insured  to  give  notice  of  other  insur- 
ances and  have  them  endorsed  on  the  policy.  Under  such 
circumstances,  the  company  is  precluded  from  asserting 
either  that  the  renewal  was  inoj^erative,  or  that  the  policy 
became  void  immediately  after  it  was  renewed,  by  reason 
of  circumstances  of  which  it  was  fully  cognizant  at  the 


/ 


\ 


576 


RENEWAL    OF    POLICY. 


time  of  renewal,  on  the  principle  of  estoppel  in  pais. 
Carroll  v.  Charter  Oak  Ins.  Co.  38  Barb.  N.  Y.  402.     1862. 

§  7.  Where  the  insurers  of  property  have,  by  their 
acts  and  conduct,  acknowledged  the  interest  in  the  prem- 
ises of  one  who  paid  to  them  a  premium  for  a  renewal  of 
the  insurance  for  another  term,  they  cannot  deny  his  inter- 
est in  a  suit  to  recover  the  insurance  money  for  a  loss  oc- 
curring after  such  renewal.  New  England  Fire  &  Marine 
Ins.  Co.  V.  Wetmore,  32  111.  221.     1863.- 

§  8.  "Where  the  tenn  for  which  an  insurance  is  effected 
is  about  to  expire,  and  a  premium  is  paid  for  another  term, 
for  which  a  renewal  receipt  is  given,  under  the  conditions 
contained  in  the  policy,  such  renewal  receipt  does  not  con- 
stitute a  new  agreement  of  insurance,  but  merely  revives 
an  expiring  contract  and  continues  it  in  force  another  term. 
And  if  a  loss  occurs  within  the  new  term,  a  recovery  can 
only  be  had  upon  the  original  contract.  New  England 
Fire  and  Marine  Ins.  Co.  v.  Wetmore,  32  111.  221.     1863. 

§  9.  Each  renewal  of  a  policy  of  insurance  is  a  new 
contract,  and  is  subject  to  the  local  Irtws  in  force  at  the 
time  of  the  renewal.  Brady  v.  Nortl  Western  Ins.  Co.  1 1 
Mich.  425.     18G3. 

§  10.  In  184G  a  verbal  agreement  was  made  between 
an  insurer  and  the  insured  that  until  one  of  the  parties  dis- 
sented the  contract  of  insurance  should  be  continuous,  and 
the  president  of  the  insurance  company  should  from  year 
to  year  bring  the  renewal  receipts  and  call  for  the  premi- 
ums when  he  thought  proper  after  they  become  due.  In 
1847  the  president  offered  to  the  insured  a  renewal  receipt 
for  the  year  which  would  end  in  July,  1848,  claiming  a 
premium  of  $30  instead  of  $25,  the  amount  previously 
paid.  The  assured  assented  to  the  change,  paid  $25  and 
promised  to  pay  the  balance.  Held,  that  the  change  of 
premium  terminated  the  arrangement  betv^c-o  the  parties 
made  in  184G,  and  that  it  required  a  v.;  irgain  to  effect 
a  continuing  arrangement  and  to  enable  t*  xsisured  to  rely 
upon  being  called  upon  on  behalf  of  tlif)  mpany  for  the 
premium,  instead  of  the  usual  method  of  taking  out  renewal 
receipts  each  year  as  they  were  needed.  Baptist  Church 
V.  Brooklyn  Fire  Ins.  Co. '28  N.  Y.  153.     1863. 


RENEWAL    OF   POLICY. 


577 


§  11.  Where  a  renewal  receipt  has  been  issued  to  the 
assignee  of  a  policy,  and  he  has  paid  the  premium,  an 
action  of  assumpsit  will  lie  by  him,  as  on  an  express  agree- 
ment and  promise  of  the  insurance  company  to  pay  him  for 
any  loss  which  might  occur.  Peoria  Marine  and  Fire  lus. 
Co.  V.  Hervey,  34  111.  46.     1864. 

§  12.  \Yhere  an  agreement  is  made  by  the  agent  of 
an  insurance  company,  for  the  renewal  of  a  policy,  nothing 
being  said  respecting  the  amount  to  be  charged,  the  in- 
sured has  a  right  to  suppose  the  renewal  is  to  be  at  the 
rate  formerly  paid.  Post  v.  ^tna  Ins.  Co.  43  Barb.  N.  Y. 
'351.     1864. 

§  13.  One  of  the  conditions  annexed  to  a  policy  of  in- 
surance on  property  in  Brooklyn  was,  that  insurances  on 
property  out  of  the  cities  of  New  York  and  Brooklyn 
were  to  be  made  upon  the  written  representations  of  the 
applicant,  that  insurances  once  made  might  be  renewed, 
and  that  all  insurances,  original  or  renewed,  should  be  con- 
sidered as  made  under  the  original  representation  in  so  far 
as  it  might  not  be  varied  by  a  new  representation  in 
writing,  whi<li  it  should  be  incumbent  on  the  assured  to 
make  m  all  t.nes  where  the  risk  had  been  changed  either 
within  itself,  or  by  the  surrounding  or  adjacent  buildings. 
That  if  at  or  before  the  time  of  renewing  any  policy,  where 
the  risk  had  been  increased  by  the  erection  of  buildings, 
or,  by  the  use  or'  occupation  of  the  premises  insured  or  the 
neighboring  premises,  the  assured  should  fail  to  give  in- 
formation thereof,  the  policy  and  renewal  should  be  void, 
and  of  no  effect.  There  Avas  no  representation  made  when 
the  policy  was  issued ;  the  risk  being  taken  on  the  report 
of  the  company's  surveyor.  IMd,  that  there  was  nothing 
in  the  contract  of  insurance  that  bound  the  assured  to 
give  written  notice  to  the  company  at  the  time  his  policy- 
was  renewed  of  the  erection  of  a  bakery  by  ^vhich  the  risk 
was  increased.  That  the  omission  to  give  notice  of  the 
fact  in  written  form  was  no  breach  of  any  warranty ;  and 
that  the  stipulation  for  notice  at  or  before  renewal,  of 
an  increased  risk  occasioned  by  the  use  or  occupation  of 
neighboring  premises  was  satisfied  by  an  oral  communica- 
tion of  the  fact  to  the  company.    That  the  first  clause  of 

37 


578  RESPONSIBILITY  OF  ASSIGNEE  FOR  ACTS  OF  ASSIGNOR. 

the  condition  did  not  apply  to  policies  granted  upon  prop- 
erty in  New  York  or  Brooklyn,  upon  a  survey  by  the 
company  itself.  Lid  die  v.  Market  Fire  Ins.  Co.  29  N.  Y. 
184.     1864. 

§  14.  Policy  to  L.,  afterwards  the  partnership  of  L. 
&  Co.  was  formed.  The  renewal  receipt  continued  the 
insurance  on  the  condition  that  "  there  has  been  no  change 
in  the  risk  since  first  insured,"  but  recited  a  ifeceipt  of  pre- 
mium from  Z.  (&  Co.  Held,  the  clause  against  change 
meant  the  terms  of  the  policy,  not  the  parties.  Lancey  v. 
Phoenix  F.  Ins.  Co.  50  Me.  562.     1869. 

§  15.  The  renewal  of  a  policy  is  in  effect  a  new  con- 
tract on  the  same  terms  and  conditions  as  in  the  original 
policy;  and  a  clause  in  the  policy  requiring  notice  and 
consent  in  case  of  vacancy  of  the  premises  for  over  thirty 
days,  is  still  in  force  under  the  renewal ;  and  a  verbal  con- 
sent by  the  a^ent  under  the  policy  itself  cannot  operate  as 
a  consent  under  the  new  contract,  for  the  latter  does  not 
differ  from  a  new  policy  under  a  new  application.  Per 
Walker^  J.  That  the  clause  requiring  written  consent  does 
not  prevent  the  agent  from  giving  verl)al  consent.  Hart- 
ford F.  Ins.  Co.  V.  Walsh,  54  111.  164.     1870. 

See  Alienation,  §  49.  Assignment,  10.  Estoppel,  21.  Increase  of  Risk, 
33.  Other  Insurance,  76, 127.  Parol  Contract,  0.  Parol  Evidence,  27.  What 
Property  is  Covered  by  the  Policy,  25. 


RESPONSIBILITY  OF  ASSIGNEE  FOR  ACTS 

OF  ASSIGNOR. 

§  1.  Policy  was  taken  out  on  stock,  and  permission 
given  in  policy  to  assign  the  same  to  a  third  party,  in 
whose  hands  the  policy  was  then  left  by  assured  ;  but  the 
assignment  not  completed  at  that  time,  though  it  was  com- 
pleted and  sighed  by  assui'ed  after  the  loss.  Heldy  that 
such  third  party  might  recover  to  the  amount  of  his  inter- 
est, although  the  original  assured  had  deprived  himself  of 
his  right  to  recover  by  taking  subsequent  insurance,  with- 


RESP0N8IBILITT  OF  ASSIGNEE  FOB  ACTS  OF  ASSIGNOR.  579 


out  notice,   contrary  to  the  provisions   of  the  policy. 
Charleston  Ins.  Co.  v.  Neve,  2  McMullan,  S.  C.  237.     1842. 

§  2.  If  a  policy  of  insurance  has  been  assigned  to  a 
mortgagee  of  the  insured  premises,  with  the  assent  of  the 
companjr,  a  violation  of  the  conditions,  such  as  would  avoid 
the  policy  in  hands  of  the  original  insured,  will  not  pre- 
vent the  mortgagee  from  recovering  to  the  extent  of  his 
interest.  Tillou  v.  Kingston  Mut.  Ins.  Co.  7  Barb.  N.  Y. 
670.     1850.    s.  c.  1  Selden,  405. 

§  3.  Where  policy  had  been  Lssi';ned  to  a  mortgagee 
of  the  premises  insured,  with  the  consent  of  the  company 
endorsed  thereon,  and  mortgagee  gave  a  new  note  to  the 
company,  in  addition  to  the  one  given  by  the  original  as- 
sured ;  Held^  that  this  was  in  le»al  effect  a  new  contract 
with  the  mortgagee,  for  a  new  and  independent  considera- 
tion, and  that  a  subsequent  alienation  of,  or  additional  in- 
surance on  the  insured  premises,  by  the  original  assured, 
did  not  avoid  the  policy  in  the  hands  of  the  assignee. 
Foster  v.  Equitable  Mut.  Ins.  Co.  2  Gray,  Mass.  216.    1854. 

§  4.  A  mortgagor  took  three  policies  on  certain  build- 
ings, and  assigned  them  with  the  consent  of  ihe  company 
to  the  mortgagee.  The  latter  brought  suit  on  the  policies 
in  the  name  of  the  mortgagor,  and  the  company  set  up  in 
defense  that  the  morti?agor,  subsequent  to  the  assignment 
of  said  policies,  had  obtained  other  insurance  without  no- 
tifying the  company,  in  violation  of  a  condition  in  said 
policies.  Held^  that  such  act  by  the  assignor  could  not  af- 
fect the  validity  of  the  policies  in  the  hands  of  the  assignee. 
But  see  §  9,  ]^ost  Traders'  Ins.  Co.  v.  Robert,  9  Wend. 
N.  Y.  404.  1832.  See  also  Allen  v.  Hudson  River  Mut. 
Ins.  Co.  19  Barb.  N.  Y.  442.     1854. 

§  5.  Where  policy  has  been  assigned  with  the  con- 
sent of  the  company,  it  is  no  longer  ui  the  power  of  as- 
signor to  do  anything  to  impair  the  validity  of  the  policy 
in  the  hands  of  the  assignee.  Pollard  v.  Somersett  Mut. 
Ins.  Co.  42  Me.  221.     1856. 

§  6.  Policy  issued  to  Stone,  was  made  "payable  in 
case  of  a  loss  to  J.  S.,"  who  was  a  mortgagee  of  the  prop- 
erty insured.    J.  S.  afterwards,  with  the  consent  of  insur- 


680  RESPONSIBILITY  OF  ASSIGNEE  FOR  ACTS  OF  ASSIGNOR. 

ers,  assigned  all  his  interest  in  the  policy  to  the  plaintiff? 
Held^  that  the  contract  was  still  between  company  and 
ori^nal  assured,  and  not  between  company  and  payee ;  and 
if  the  policy  was  void  by  acts  of  original  assured,  plaintiff 
could  not  recover.  Hale  v.  Mechanics'  Mut.  Fire  Ins.  Co» 
6  Gray,  Mass.  169.     1856. 

§  7.  A  policy  made  "  payable  in  case  of  loss  to "  a 
mortgagee  of  the  premises  insured,  is  wholly  avoided  by  a 
subsequent  alienation  of  the  insured  property,  contrary  to 
the  provisions  of  such  policy.  Such  order  does  not  con- 
stitute an  assignment  of  the  policy,  or  convert  the  contract 
into  an  insurance. of  the  moi*tgagee's  interest.  Loring  v. 
Manufacturers'  Ins.  Co.  8  Gray,  Mass.  28.     1857. 

§  8.  Kellogg,  who  held  certain  mortgages  against  one 
McCarty,  assigned  them  to  plaintiff  with  a  guai'anty  of 
their  payment.  A  policy  was  issued  to  McCarty  payable 
in  case  of  loss  to  plaintiff.  Before  the  loss  McCarty  con- 
veyed the  premises  insured  to  a  third  person,  and  after  the 
loss  the  mortgagees  were  foreclosed,  and  the  mortgage  debt 
in  part  paid,  ilekl^  1  st,  that  the  policy  was  to  be  treated 
as  an  insurance  on  plaintiff's  mortgage  interest,  and  could 
not  be  affected  by  any  act  of  the  mortgagor ;  2d,  that  the 
foreclosure  of  the  loss  did  not  affect  the  liability  of  the 
company,  especially  as  it  had  not  been  set  up  in  the  an- 
swer; and  3d,  that  the  action  was  not  brought  for  the 
"  immediate  benefit "  of  Kellogg  within  the  meaning  of  § 
399  of  Code  of  New  York,  and  his  testimony  was  compe- 
tent. Grosvenor  v.  Atlantic  Fire  Ins.  Co.  1  Bosw.  N.  Y. 
469.     1857.     Overruled  as  to  1st  point— j^os^,  §  9. 

§  9.  Where  mortgagor  took  out  policy  in  his  own 
name,  "  made  payable  in  case  of  loss  to  mortgagee,"  and 
afterwards  sold  all  his  interest  in  the  property ;  it  was 
Held^  that  the  contract  was  with  the  morti^agor,  and  not 
with  the  mortgagee ;  and  that  the  sale  of  the  property  di- 
vested mortgagor  of  all  insurable  interest,  and  mortgagee 
could  not  recover.  Grosvenor  v.  Atlantic  Ins.  Co.  17  N. 
Y.  391.  1858.  Overruling  Traders'  Ins.  Co.  v.  Robert,  9 
Wend.  N.  Y.  404.  1832.  Tillou  v.  .Kingston  Mut.  Ins. 
Co.  1  Seld.  N.  Y.  405.  1851.  1  Bosw.  N.  Y.  469.  1857 
And  reversing  on  this  point  5  Duer,  N.  Y.  317.    1856. 


RESPONSIBILITY  OF  ASSIGNEE  FOR  ACTS  OF  ASSIGNOR.  581 


II 


§  10.  Where  a  policy,  with  consent  of  insurer,  has 
been  assigned  to  a  mortgagee  of  the  premises  insured;  in 
case  of  a  loss,  the  assignee  can  only  recover  where  his  aS' 
signor  could  have  done  so,  had  no  assignment  been  made. 
Such  assignment  does  not  convert  the  policy  into  a  contract 
of  indemnity  to  the  mortgagee ;  it  is  the  interest  of  the 
mortgagor  alone  that  is  covered  bv  it.  State  Mutual  Fire 
Ins.  Co.  V.  Roberts,  31  Penn.  St.  438.     1858. 

r 

§  11.  Assignee,  being  mortgagee,  takes  policy  subject 
to  conditions  made  with  assured ;  and  if  insured,  being 
mortgagor,  breaks  conditions  after  assignment  by  additional 
insurance  in  eAcess  of  the  amount  permitted  by  the  policy, 
the  assignee  cannot  recover.  Buffalo  Steam  Engine  Works 
V.  Sun  Mut.  IriS.  Co.  17  N.  Y.  401.     1858. 

§  12.  Mortgagor,  with  the  consent  of  the  insurance 
companjr,  assigned  his  policy  to  the  mortgagee.  The  policy 
thus  assigned  stipulated  that  "  other  insurance,  without 
notice  and  consent  of  the  company,  should  avoid  the  policy." 
Subsequent  to  the  assignment  to  mortgagee,  the  mortgagor 
effected  a  second  insurance,  of  which  no  notice  was  given 
to  the  first  insurers.  Held,  that  the  mortgagee  was  bound 
for  the  breach  of  the  terms  and  conditions  of  the  policy  by 
the  mortgagor;  and  that  the  second  insurance,  without 
notice,  avoided  the  policy.  State  Mut.  Fire  Ins.  Co.  v. 
Roberts,  31  Penn.  St.  438.     1858. 

§  13.  If  the  owner  of  property,  which  is  insured  by  a 
policy  containing  an  express  provision  that  the  by-laws  of 
the  company  shall  form  a  part  thereof,  mortgages  the  same 
in  violation  of  one  of  the  by-laws,  the  policy  is  defeated; 
and  no  right  of  action  thereon  remains  in  favor  of  one  to 
whom  it  had  previously  been  assigned  with  the  consent  of 
the  company  to  secure  a  prior  mortgage.  Edes  v.  Hamil- 
ton Mut.  Ins.  Co.  3  Allen,  Mass.  362.     1862. 

§  14.  After  an  assignment  of  a  policy  of  insurance 
with  the  consent  of  the  insurance  company,  a  non-compli- 
ance with  the  terms  of  the  policy  by  the  assignor,  in  mat- 
ters material  to  the  interests  of  the  company,  will  avoid  it 
as  against  the  assignee.  Pupke  v.  Resolute  Fire  Ins.  Co. 
17  Wis.  378.     1863. 


I   l! 


582  BESPONSIBILITT  OF  ASSIGNEE  FOR  ACTS  OF  ASSIONOB. 

§  15.  No  act  i  the  party  insured,  after  an  assignment 
of  tfie  policy  with  the  assent  of  the  insurers,  can  impair 
the  rights  of  the  assignee.  New  England  Fire  &  Marine 
Ins.  Co.  V.  Wetmore,  32  111.  221.     1863. 

§  16.  Where  it  is  provided  in  T)y-laws  which  are  a  part 
of  a  contract  of  insurance,  that  "  when  any  property  shall 
be  alienated,  by  sale  or  otherwise,  the  poficy  thereupon 
shall  be  void,"  if  the  insured,  after  mortgaging  the  prop- 
erty and  assigning  the  policy  with  the  consent  of  the  in- 
surers, conveys  his  equity  of  redemption  without  such 
consent,  the  policy  thereupon  becomes  void.  Lawrence  v. 
Holyoke  Ins.  Co.  11  Allen,  Mass.  387.     1865. 

§  17.  A  policy  upon  a  house  described  therein  as  "  oc- 
cupied for  a  aweliing-house,  the  basement  being  of  stone 
and  wood,"  becomes  void  in  the  hands  of  a  mortgagee  to 
whom  it  has  been  assigned,  by  the  use  and  occupation  of 
the  basement  of  the  house,  after  the  assignment  and  before 
the  loss,  as  a  joiner's  shop,  although  such  change  of  use 
was  unknown  to  the  mortgagee ;  the  charter  expressly  pro- 
viding, that  "  no  policy  shall  extend  or  be  construed  to 
extend  "  to  such  and  other  specified  i-isks,  "  unless  the  same 
are  expressly  mentioned  in  the  policy,  and  a  proportional 
premium  and  deposit  paid."  Hoxsie  v.  Providence  Mut. 
Ins.  Co.  6  R.  I.  517.     1860. 

§  18.  Policy  to  be  void  if  subsequent  insurance  is 
made  by  the  assured  or  his  assignees,  was  assigned  with 
the  company's  consent  to  a  mortgagee;  after  which  the 
mortgagor  effected  another  insurance  without  the  com- 
pany^ consent.  Held,  the  mortgagee's  policy  was  not 
affected.  On  paying  the  loss,  the  company  is  entitled  to 
an  assiffinment  of  the  mortgage.  Burton  v.  Gore  Dist. 
Mut.  Fire  Ins.  Co.  12  Grant's  Ch.  156.     1865. 

tl9.  A  policy  obtained  by  the  owner  on  his  dwell- 
ouse ;  loss  payable  to  plaintiff,  a  mortgagee,  provided 
that  the  mortgagee  "  shall  notify  the  company  of  any  change 
of  ownership  or  increase  of  hazard  not  permitted  *  *  * 
to  the  owner,  as  soon  as  it  shall  come  to  his  knowledge." 
The  owner  used  the  building  for  the  currying  business, 
with  the  plaintiff's  knowledge,  not  notified  to  the  company. 


RESPONSIBILITY  OF  ASSURED  FOR  ACTS  OF  OTHERS.     583 

The  fact  of  such  use  being  stipulated  as  specially  hazard- 
ous by  the  general  clause  in  that  class  including  all  trades 
not  above  enumerated,  renders  unnecessaiy  evidence  of  its 
increasing  the  risk,  and  plaintiff  cannot  recover.  Gasner 
V.  Metropolitan  Ins.  Co.  13  Minn.  483.     1868. 

§  20.  Arson  by  the  assured  defeats  recovery  for  the 
one  to  whom  a  part  interest  in  the  policy  had  been  pre- 
viously assignetl  with  the  company's  assent,  the  assured  re- 
taining a  part  interest.  Chishom  v.  Provincial  Ins.  Co. 
20  U.  C,  C.  P.  11.     18C9. 

§  21.  The  assured  mortgages  his  property  and  assigns 
the  policy  as  collateral  to  the  mortgagee,  the  company  en- 
dorsmg  a  consent ;  Held,  it  is  found  to  work  great  injus- 
tice to  the  company  to  treat  it  as  a  new  policy  to  the  mort- 
gagee ;  he  must  take  it  subject  to  the  conditions  of  its  face, 
and  cannot  recover  in  consequence  of  his  own  equities,  if 
the  assignor  has  lost  his  right  of  recovery  by  violation  of 
terms ;  and  tlie  latter's  setting  on  fire  or  further  insurance 
prevents  recovery  b\  the  former.  111.  Mut.  Fire  Ins.  Co. 
V.  Fix,  53  111.  151.     1870. 

8ee  Alienation,  §  21,  35,  40,  52,  66.  Assignment,  18,  48.  Dependency  of 
Policy  and  Premium  Note,  18.  Encumbrance,  24.  Interest  in  Policy,  11. 
Other  Insurance,  31,  54. 


RESPONSIBILITY  OF  ASSURED  FOR  ACTS 

OF  OTHERS. 

§  1.  Where  assured  represented  in  his  application 
that  water  casks  in  the  insured  building  were  constantly 
kept  full ;  Held,  that  the  negligence  of  assured's  servants ; 
in  not  keeping  them  full,  contrary  to  assured's  order  to 
have  them  kept  full,  would  not  avoid  the  policy.  Daniels 
V.  Hudson  River  Fire  Ins.  Co.  12  Cush.  Mass.  416.    1853. 

§  2.  The  premises  insured  were  leased  before,  and  sub- 
leased after,  the  date  ]of  the  policy ;  and  the  risk  was  in- 
creased by  acts  of  sub-lessees.    A  by-law  provided,  that 


<'=H;4,t^ 


684     KESPONSIBILITT  OF  ASSURED  FOR  ACTS  OF  OTHERS* 

"  whenever  the  risk  of  any  insurance  is  increased  by  the 
act  of  the  assured,  the  policy  shall  thereupon  be  void." 
Held^  that  assured  was  not  responsible  for  acts  of  the  sub- 
lessees, done  without  his  consent  or  knowledge,  and  that 
he  was  entitled  to  recover.  Sanford  v.  Mechanics'  Mut. 
Fire  Ins.  Co.  12  Cush.  Mass.  541.     1853. 

§  3.  Under  provision  in  charter  "  against  alteration 
by  acts  of  the  proprietors ;"  a  tenant  is  not  the  proprietor 
within  the  meaning  of  that  section  ;  it  refers  to  the  insured 
owner,  and  it  must  be  his  act,  one  that  he  does  himself,  or 
authorizes  to  be  done,  or  one  which  he  adopts  us  his  before 
any  loss  occurs.  Paddleford  v.  Providence  Mut.  Fire  Ins. 
Co.  3  K.  I.  102.     1855. 

§  4.  The  keeping  of  straw  upon  the  insured  premises, 
so  as  to  increase  the  risk,  by  a  tenant  of  the  insured,  and 
without  the  latter's  knowledge  or  consent,  will  not  avoid 
the  policy.  White  v.  Mutual  Fire  Ins.  Co.  8  Gray,  Mass. 
666.     1857. 

§  5.  A  stipulation  in  a  policy  that  if  any  agent  of 
the  company,  in  the  transaction  of  their  business,  shall 
violate  the  conditions,  the  violation  shall  be  construed  to 
be  the  act  o  *  the  assured  and  shall  avoid  the  policy,  will 
not  render  the  assured  responsible  for  the  mistakes  of  the 
agent.  Columbia  Ins.  Co.  v.  Cooper,  50  Penn.  St.  331 
1865. 

§  6.  The  tenant's  violation  of  the  conditions  of  a  pol 
icy,  without  the  owner's  knowledge,  avoids  the  insurance 
Steinmetz  v.  Franklin  Fire  Ins,  Co.  6  Phila.  II.  21.    1865 

§  7.  Clause  of  forfeiture  if  the  })uilding  is  "  used  for 
unlawful  purposes."  The  assured  let  the  store,  part  for 
storing  whiskey;  the  tenant  intended  to  sell  the  liq 
uor  in  it,  and  did  from  time  to  time  retail  the  same,  with 
out  license.  Ileld,,  this  habitual  use  for  an  unlawful  pur 
pose,  even  if  unknown  to  the  assured,  avoided  the  poliqy, 
for  the  object  of  the  clause  was  to  define  a  risk  the  insurers 
will  not  assume.  Kelly  v.  Worcester  Mut.  Fire  Ins.  Co. 
97  Mass.  284.     1867. 

§  8.    The  possession  of  the  tenant  is  the  possession  of 


SBS< 


RETURN"    PREMIUM. 


585 


i  by  the 
)e  void." 
'  the  sub- 
and  that 
Lcs'  Mut. 


Iteration 
roprietor 
)  insured 
imself,  or 
is  before 
Fire  Ins. 


premises, 
ired,  and 
ot  avoid 
ij,  Mass. 

assent  of 
3ss,  shall 
trued  to 
icy,  will 
9  of  the 
St.  331. 

of  a  pol- 
surance. 
1865. 

used  for 
part  for 
the  liq- 
le,  with- 
ful  pur- 

\  poliqy, 
insurers 
Ins.  Co. 

ssion  of 


the  landlord,  and  the  covenant  against  alteration  is  vio- 
lated by  an  alteration  by  the  tenant,  though  without  the 
authority  or  knowledge  of  the  assured;  the  covenants 
hold,  whether  the  assured  occupy  personally  or  by  tenant. 
Diehl  V.  Adams  Co.  Mut.  Ins.  Co.  58  Pa.  St.  443.     1868. 

§  9.  The  application  answered  that  smoking  was  not 
allowed,  and  the  policy  prohibited  it.  The  assured,  on  be- 
ing informed  of  the  prohibition,  forbade  smoking,  and 
pasted  up  a  notice  to  that  effect.  Held,  the  assured  only 
undertakes  that  he  will  not  smoke,  nor  allow  others  if,  by 
reasonable  precaution,  he  can  prevent  it.  Ins.  Co.  of  N. 
Amer  v.  McDowell,  50  111.  120.     1869. 

§  10.  It  is  expressly  agreed,  "  that  smoking  shall  be 
prohibited  in  or  about  the  buildings."  The  assured  used 
reasonable  efforts  to  prevent  smoking,  by  forbidding  it. 
jffeldj  such  reasonable  efforts  were  all  that  had  been  con- 
tracted for.  The  evidence  not  showing  that  any  disregard 
of  his  orders  had  come  to  his  knowledge ;  Held,  the  com- 
pany were  liable.  Aurora  Ins.  Co.  v.  Eddy,  55  111.  213. 
1870. 

See  Alteration,  §  5, 6.  Burning  by  Design,  4.  Increase  of  Risk,  20,  38. 
Negligence,  3,  11.  Other  Insurance,  85.  Storing  and  Keeping,  20.  Use  and 
Occupation,  28,  35,  37,  41,  46,  48,  64.     Warranty  and  Representation,  16. 


i 
I 


RETURN  PREMIUM. 


§  1.  An  action  for  money  had  and  received  will  not 
lie  to  recover  the  premium  of  a  re-assurance  void  by 
statute  of  19  Getorge  II,  c.  37,  s.  4.  Andree  v.  Fletcher, 
2  Term  Rep.  161 ;  3  Term  Rep.  266.     1789. 

§  2.  Where  assured  had  alienated  the  insured  prop- 
erty, and  offered  to  surrender  his  policy  and  take  up  his 
deposit  note ;  Held,  that  under  the  charter  of  the  company, 
he  had  the  election,  without  the  assent  of  the  company, 
thus  to  surrender  his  policy,  and  was  entitled  to  that  por- 
tion of  his  funds  which  had  not  been  appropriated  for 


586 


RETURN    PREMIUM. 


losses  and  expenses  previous  to  the  surrender  of  the  policy. 
Sullivan  v.  MassacLusetts  Mut.  Fire  Ins.  Co.  2  Mass.  SI 8. 
1807. 

§  3.  "Where  risk  never  attached,  the  premium  must 
be  returned,  if  there  was  no  fraud.  In  this  case  an  ac- 
tion was  brought  on  the  policy,  with  counts  for  money 
had  and  received.  There  had  been  renewals,  running 
back  many  years.  The  policy  was  held  void,  for  non- 
compliance with  warranty  in  original  application,  to  which 
all  the  renewed  policies  referred.  Plaintiff  held  entitled 
to  all  renewals  paid  by  him,  within  the  statute  of  limit- 
ations. Clark  V.  Manufacturers'  Ins.  Co.  2  Wood  &  Mi- 
not,  C.  C.  U.  S.  472.     1847. 

§  4.  If  a  policy  is  obtained  bv  fraudulent  misrepre- 
sentations, and  never  attached  for  that  reason,  no  premium 
is  returnable.  Friesmuth  v.  Agawara  Mut.  Ins.  Co.  10 
Cush.  Mass.  587.     1852. 

§  5.  If  the  by-laws  of  a  mutual  insurance  company 
provide  that  policies  may  be  surrendered  at  any  time  to 
be  canceled,  and  that  the  insured  shall  receive  the  return 
premium,  in  accordance  with  a  certain  table,  and,  after  an 
injunction  has  been  laid  upon  the  company,  the  directors, 
under  the  authority  of  the  court,  have  duly  canceled  all 
the  outstanding  policies,  the  return  premiums  due  to  the 
policy-holders  are  just  claims  against  the  company,  and 
may  be  included  among  the  items  of  liability,  in  making 
an  assessment  upon  the  deposit  notes.  Fayette  Mut.  Fire 
Ins.  Co.  v.  Fuller,  8  Allen,  Mass.  27.     1864. 

§  6.  The  jiolicy  never  has  attached  on  account  of  mis- 
representation in  the  application,  therefore  the  plaintiff 
may  recover  back  his  premium.  Mulvey  v.  Gore  District 
Mut.  Fire  Ass.  Co.  25  t .  C,  Q.  B.  424.     1806. 

See  Countersigning  by  Agent,  §  2.     Title,  1. 


|i: 


'"■'«»» 


KEVIVAL  AND   SUSPENSION  OF  POLICY. 

§  1.  A  corporator  of  a  mutual  fire  insurance  company 
effected  insurance  on  his  individual  property,  and  gave  to 
the  company  a  note  for  the  amount  of  the  premium  of  in- 
surance. A  by-law  was  subsequently  passed  by  a  meeting 
of  the  managers,  at  which  he  was  not  present,  which  pro- 
vided "  that  if  the  interest  of  any  note  be  in  arrear  at  any 
time  for  three  months,  the  policy  shall  be  suspended  and 
of  no  effect  to  make  the  company  liable  for  loss,  until  the 
interest  be  paid."  Upwards  of  three  years  after  the  pas- 
sage of  the  by-law,  notice  of  it  was  given  to  him  by  a 
circular  letter,  and  within  thirty  days  after  the  notice,  his 
property  was  destroyed  by  fire.  Held^  that  the  company 
could  not,  by  the  passage  of  a  by-law,  without  consent  of 
the  assured,  prevent  his  recovering  upon  the  policy ;  that 
the  only  remedy  of  the  corporation  for  the  non-payment 
of  interest  was  that  given  to  them  by  the  charter,  to  wit, 
the  calling  in  of  the  entire  principal  sum  of  the  note ;  and 
that  they  had  no  power  to  forfeit  his  rights  under  the  con- 
tract.   Insurance  Co.  v.  Conner,  17  Penn.  St.  136.     1851. 

§  2.  Where,  contrary  to  the  provisions  of  the  policy, 
the  assured  obtained  a  subsequent  insurance  without  notice 
or  consent  of  the  first  insurer ;  Held^  that  the  company 
had  not  waived  a  compliance  with  such  condition,  because, 
Ions  after  the '  obtaining  of  such  second  insurance  and 
without  any  knowledge  on  the  part  of  the  company,  that 
it  had  been  obtained,  their  treasurer,  in  issuing  his  note  of 
assessment,  endorsed,  in  a  printed  form,  a  schedule  of  losses 
claimed  of  the  company,  in  which  the  claim  of  the  assured 
was  included,  but  with  a  note  appended,  showing  it  as 
"unadjusted."  Forbes  v.  Agawam  Mut.  Fire  Ins.  Co.  9 
Cush.  Mass.  470.     1852. 

§  3.  A  policy  in  a  mutual  insurance  company,  issued 
to  the  plaintiff,  was  by  its  terms  to  be  "  suspended,"  if 
the  assured  should  neglect  for  ten  days  to  pay  an  assessment 
levied.  Nearly  fifteen  mouths  after  the  policy  was  sus- 
pended in  consequence  of  non-payment  of  two  assessments 
the  assured  sold  the  property  to  another  part^',  and  with 
the  consent  of  the  company,  assigned  the  policy  to  such 


688 


REVIVAL   AND    SUSPENSION   OF  POLICY. 


party,  who  at  the  same  time  executed  a  mortgage  back  to 
plaintiff,  and  re-assigned  the  policy  to  plaintiff,  with  con- 
sent of  the  company.  At  the  time  of  this  sale  and  assign- 
ment of  the  policy,  the  purchaser  of  the  property  was  not 
informed  of  the  defect  in  the  policy,  by  reason  of  the  non- 
payment of  the  assessments ;  Hetd^  that  the  directors  of 
the  company,  if  they  meant  to  insist  on  this  objection, 
should  have  spoken  then ;  but  not  having  informed  the 
purchaser  of  the  fact,  they  must  be  understood  to  have 
waived  it,  and  could  not  be  permitted  to  set  it  up  to  defeat 
an  insurance,  to  which  the  purchaser  of  the  property  had 
innocently  trusted  till  the  loss  happened.  Hale  v.  union 
Mut.  Fire  Ins.  Co.  32  N.  H.  295.     1855. 

§  4.  Where  policy  provides  that  if  the  insured  shall 
neglect  for  ten  days,  when  personally  called  upon,  to  pay 
any  assessment,  the  risk  of  the  company  on  the  policy  shall 
be  suspended  till  the  same  is  paid ;  there  can  be  no  recov- 
ery for  a  loss  occurring  ten  days  after  such  assessment  has 
been  demanded  and  left  unpaid.  The  policy  is  then  sus- 
pended until  such  assessment  be  paid.  Blanchard  v.  At- 
lantic Mut.  Fire  Ins.  Co.  33  K  H.  9.     1856. 

§  5.  Where  policy  had  been  suspended  by  reason  of  a 
non-payment  of  an  assessment ;  Held^  that  the  company 
could  not  be  considered  as  having  waived  their  riffh^  to  be 
exempted  from  liability  for  the  plaintiff's  loss,  by  their 
subsequent  assessment  and  collection  to  cover  it.  Nash 
V.  Union  Mut.  Fire  Ins.  Co.  43  Me.  343.     1857. 

^  6.  Where  the  conij)any  has  been  discliarged  from 
liability  by  want  of  notice  of  loss  in  due  time,  respcmsi- 
bility  for  the  loss  will  not  re-attach  to  them,  without 
proving  authority  in  the  agent  to  waive  the  notice,  or  a 
new  consiileration  to  sustain  it.  Trask  v.  State  Fire  <t 
Marine  Ins.  Co.  29  Penn.  St.  198.     1858. 

§  7.  A  policy,  void  ah  initio  by  misrepresentation  of 
title,  is  not  rendered  valid  by  an  ai)j)roval,  by  the  directors 
of  the  company  that  issued  it,  to  an  assignment  thereof  of 
the  assured's  interest  therein  ;  and  the  assignee  cannot 
maintain  action  on  it,  although  the  title  came  to  him  be- 
fore the  loss.  Eastman  v.  Carroll  County  Ins.  Co.  45  Me. 
307.     1858. 


BISK. 


589 


§  8.  Where  a  policy  had  been  forfeited  by  a  convey- 
ance of  the  property  insured  without  the  consent  of  the 
company,  and  the  alienee,  subsequently  supposing  the  pol- 
icy to  be  good,  assigned  it  to  a  mortgagee,  and,  inform- 
ing an  agent  of  the  company  of  his  purchase,  requested 
consent  to  the  assignment,  and  the  agent  wrote  across  the 
face  of  the  policy  the  words,  "  the  loss,  if  any,  to  be  pay- 
able to  C,  mortgagee ;"  Held,  that  the  company  thereby 
waived  the  forfeiture,  and  continued  the  policy  in  force. 
Keeler  -^,  Niagara  Fire  Ins.  Co.  16  Wis.  523.     1863. 

See  Agent,  §  49,  78, 88.     Alienation,  3,  9,  42.     Assessments,  45.     Assign- 
ment,  45.    Campliene,  1.    Construction;  20.    Dependency  of  Policy  and  Pre- 
mium Note,  1,  2,  3,  8,  9,  16.    Estoppel,  21.     IncreaseofRisk,  42,  49.    Other 
Insurance,  123.     Parol  Contract,  2.     Premium  Notes,  4,  7.      Storing  and 
Keeping,  4.    Use  and  Occupation,  58,  60,  75. 


from 


RISK. 

§  1.  Condition,  that  insurers  would  not  be  liable  for 
any  loss  by  reason  of  any  invasion,  or  any  military  or 
usurped  power.  The  house  was  burned  by  a  mob.  Heldy 
that  the  loss  was  not  by  reason  of  any  usurped  power 
within  the  meaning  of  the  policy.  Drinkwater  v.  Lon- 
don Assurance  Co.  2  Wilson,  363.     1767. 

§  2.  The  words,  "  civil  commotion,"  in  a  policy  of  in- 
surance against  fire,  excludes  losses  happening  in  conse- 
quence of  the  riots  in  London  in  1780.  Longdale  v.  Ma- 
Son,  2  Marsh,  on  Insurance,  702.     1780. 

§3.  Insurance  "against  all  losses  which  defendants 
should  suffer  by  fire,"  on  stock  and  utensils  in  sugar  liouse. 
By  reason  of  negligence,  in  building  fire  without  unclos- 
ing register  on  top  of  chimney,  which  has  usual  been 
closed  the  night  before,  the  rooms  were  filled  with  sparks 
and  smoke,  and  the  walla  were  blistered  and  the  sugar 
injured  by  the  heat ;  but  there  was  no  actual  fire.  Jleld^ 
not  a  loss  within  the  policy.  Austin  v.  Drewe,  6  Taunt. 
426.  (1  E.  C.  L.  691.)  1816.  Austin  v.  Drewe,  4  Camp. 
N.  P.  360. 


1^    'ki 


ifA 


590 


BISK. 


§  4.  It  having  been  found  by  verdict  of  a  jury,  that  a 
building  protected  by  a  policy,  had  been  injured  by  the 
falling  of  the  gable  of  another  house,  in  consequence  of 
fire  in  that  house;  Ifeld,  that  the  insurers  were  liable 
although  the  house  insured  had  not  been  on  fire,  and  the 
gable  of  the  other  house  had  stood  for  two  days  after  the 
fire  was  extinguished,  and  fell  in  the  course  of  operations 
by  order  of  the  Dean  of  Guild,  with  the  view  of  taking 
it  down.  Johnston  v.  West  of  Scotland  Ins.  Co.  7  Cases 
in  the  Court  of  Sessions,  52.     1828. 

§  5.  Where  a  steamboat  was  insured  against "  loss  or 
damage  by  fire,"  and  an  explosion  of  gunpowder  caused 
the  destruction  of  the  boat  by  burning ;  Ifeld,  that  as  the 
explosion  was  caused  by  fire,  the  latter  was  the  proximate 
cause  ofthe  loss.  Waters  v.  Louisville  Ins.  Co.  11  Pet. 
U.  S.  213.     1837. 

§  6.  A  policy  on  merchandise  agreed  to  make  good  to 
the  assured  all  such  loss  and  damage  to  the  property  as 
should  happen  by  "  fire."  In  the  great  fire  in  New  York, 
the  store  containing  the  goods  insured,  was,  by  order  of 
the  mayor,  blown  up  with  gunpowder  to  prevent  the 
spread  'of  the  conflagration.  At  the  time  this  was  done, 
the  buildings  all  around  were  on  fire,  and  were  afterward 
destroyed,  and  according  to  every  probability  "the  fire 
would  have  destroyed  the  store  in  question,  if  it  had  not 
been  blown  up."  Held,  that  this  was  a  loss  by  fire  with- 
in the  meaning  of  the  policy.  City  Fire  Ins.  Co.  v.  Cor- 
lies,  21  Wend.  N.  Y.  367.     1839. 

§  7.  Where  a  building  insured  was  torn  down  to  pre- 
vent the  spread  of  fire,  and  partly  paid  for  by  order  of 
the  corporation ;  Held,  that  the  insurer  was  lial.>lo,  to  the 
amount  of  the  policy,  for  the  full  value  of  the  building, 
less  the  amount  received  from  the  city,  after  deducting 
from  such  amount  a  proportionate  share  of  the  cost  of 
recovery  against  the  city.  Pentz  v.  -/Etna  Ins.  Co.  of  New 
York,  9  Paige,  N.  Y.  568.  1842.  Reversing  3  Edw.  Ch. 
N.  Y.  341.     1839. 

§  8.  Where  sugar  and  molasses,  contained  in  a  sugar 
house  and  covered  by  an  ordinary  fire  policy,  are  destroy- 
ed by  an  explosion  of  the  steam  boilers  used  in  mauufac- 


i 


BISK. 


591 


turing  sugar ;  the  damage  having  been  produced  by  the 
explosion  and  not  by  fire,  the  insurers  will  not  be  re- 
sponsible. Millaudon  v.  New  Orleans  Ins.  Co.  4  La. 
An.  15.     1849. 

I  9.  In  order  to  exempt  an  insurance  company  from 
liability  for  loss  by  riot,  it  is  not  necessary  that  the  guilt 
of  the  rioters  should  have  been  first  established  by  a 
criminal  prosecution.  Dupin  v.  Mutual  Ins.  Co.  5  La. 
An.  482.     1850. 

§  10.  Where  a  house  is  destroyed  by  a  riotous  as- 
semblage, and  there  is  a  clause  in  the  policy  excepting  a 
loss  of  that  character,  the  insurance  company  is  not 
liable  for  the  loss ;  and  it  is  in  such  case  immaterial  that 
the  rioters  originally  assembled  for  a  lawful  purpose,  but 
afterwards  were  guilty  of  riot.  Dupin  v.  Mutual  Ins. 
Co.  5  La.  An.  482.     1850. 

§  1 1.  "  Loss  or  damage  by  fire,"  includes  a  loss  caused 
partly  by  an  explosion  of  gunpowder  on  the  premises, 
and  partly  by  burning.  Scriptur  v.  Lowell  Mut.  Ins.  Co. 
10  Cush.  Mass.  356.     1852. 

§  12.  A  policy  against  fire  provided  "  that  the  in- 
surer would  not  be  liable  for  any  loss  occasioned  by  the 
explosion  of  a  steam  boiler."  The  fire  was  caused  by  an 
explosion  of  a  steam  boiler  in  the  manufactory  insured. 
Held,  that  it  was  a  loss  within  the  excepted  peril  men- 
tioned in  the  condition,  and  could  not,  therefore,  be  re- 
covered. St.  John  v.  American  Mut.  Marine  &,  Fire  Ins. 
Co.  1  Duer,  N.  Y.  371.  1852.  Affirmed,  1  Kern.  N.  Y. 
516.     1854. 

§  13.  An  insurance  against  fire,  efliected  upon  a  cer- 
tain quality  of  coal,  covers  not  only  the  coals  deposited  at 
the  time,  but  those  deposited  since,  and  covers  also  the 
risk  arising  from  the  spontaneous  combustion  of  such 
coal.  British  American  Ins.  Co.  v.  Joseph,  9  Lower  Can- 
ada, Q.  B.  Appeal  Side,  448.     1857. 

§  1 4.  Losses  arising  from  honajide  efforts  to  extinguish 
fire,  such  as  wetting  and  soiling  of  goods,  and  losses  by 
theft   consequent  upon  their  removal,  are  fairly  within 


592 


RI8K. 


: 


the  contract  of  insurance  against  fire.     Whitehurst  v.  Fay- 
etteville  Mut.  Ins.  Co.  6  Jones  Law,  N.  C.  352.     1859. 

§  15.  A  party  setting  fire  to  grass  upon  bis  land  at 
an  improper  and  unfitting  time,  is  by  that  mere  fact,  re- 
sponsible for  the  loss  thereby  of  a  threshing  machine, 
which  had  been  brought  on  his  land  to  thresh  his  grain. 
Hynes  v.  McFarlan,  9  Lower  Canada,  Q.  B.  Appeal  Side, 
502.     1860. 

§  16.  Assuming  the  risk  of  a  steam  flouring  mill,  in- 
volves the  assumption  of  those  things  fairly  and  properly 
connected  with  such  a  l)usiness,  as  part  of  and  apper- 
taining to  it,  whether  newly  introduced,  or  used  before 
the  insurance  was  effected,  or  not.  Merchants'  and  Man- 
ufacturers' Ins.  Co.  V.  Washington  Ins.  Co.  1  Handy,  Ohio, 
181.     1854. 

§  17.  Where  plaintiffs  effected  an  insurance  upon 
their  stock  of  "flour,  grain,  and  cooperage,  contained  in 
their  stone  and  })rick  steam  flouring  mill,  with  a  cement 
roof,  known  as  the  city  mills,  detached  from  all  other 
buildings ; ''  and  it  was  agreed  that  "  thereafter,"  none  of  the 
following  trades  should  be  carried  on  therein,  viz. :  grist, 
saw,  paper,  and  other  mills,  manufactories,  or  mechanical  op- 
erations requiring  fire-heat,  or  in  which  wood  chips  or  shav- 
ingfe  are  made ; "  and  at  the  time  of  the  loss  the  business 
of  "  kiln-drying  corn  meal,"  recimr'mg  Jii-e-fieaf,  was  carried 
on  in  the  building ;  Held,  that  as  kiln-drying  corn  meal 
was  an  incident  to  a  "  steam  flouring  mill,"  the  policy  was 
valid.  Merchants'  and  Manufacturers'  Ins.  Co.  v.  Washing- 
ton Ins.  Co.  1  Handy,  Ohio,  181.     1854. 

§  18.  Insurance  against  fire  was  effected  on  goods 
contained  in  a  store ;  one  of  the  walls  gave  way,  and  half 
of  the  store  and  the  whole  of  the  adjoining  building  fell ; 
before  there  was  time  to  remove  the  goods,  fire  broke  out 
in  the  adjoining  building,  and  communicated  with  the  in- 
sured premise?*.  Held,  that  the  insurers  were  liable  for 
damage  from  fire,  and  from  water  used  to  extinguish  it,  to 
goods  not  displaced  or  injured  by  the  fall.  Lewis  v. 
Springfield  Fire  6l  Marine  Ins.  Co.  10  Gray,  Mass.  159. 
1857. 


RISK. 


593 


itv.  Fay- 
1859. 

land  at 
fact,  re- 
machine, 
is  grain, 
eal  Side, 

mill,  in- 
properly 
d  apper- 
d  before 
nd  Man- 
ay,  Ohio, 

ice  upon 
ained  in 

I  cement 

II  other 
neof  the 
!. :  grist, 
inical  op- 

1  or  shav- 
business 
i  carried 
)ru  meal 
>licy  was 
V^ashing- 


§  19.  Where  a  fire  did  not  occur  on  the  premises  in- 
sured, but  broke  out  in  a  contiguous  building  and  caused 
an  explosion  of  eunpowder,  which  by  the  concussion  of 
the  air  injured  the  building  insured,  such  injury  is  not 
covered  b^  the  policy.  If,  however,  the  explosion  had 
been  occasioned  by  a  fire  uj3on  the  premises  msured,  the 
loss  occasioned  by  the  explosion  would  be  within  the  pol- 
icy. Caballero  v.  Home  Mut.  Ins.  Co.  15  La.  An.  217. 
1860. 

§  20.  Where,  by  the  terms  of  the  policy,  insuring 
against  loss  or  damage  by  fire,  "  on  the  building  occupied 
as  an  india  rubber  factory,  and  on  property  contained 
therein,  and  on  machineiy,  tools,  steam  engine,  and  shaft- 
ing," it  is  provided  that  the  company  "  shall  not  be  liable, 
to  make  eood  any  loss  or  damage  by  fire  which  shall  hap- 
pen or  arise  by  any  explosion ;"  and  where  one  of  the  con- 
ditions forming  part  of  the  policy  also  declares,  that 
"  neither  will  this  company  be  answerable  for  loss  or  dam- 
age by  explosion  of  any  kind,"  and  where  the  insured 
premises  and  property  are  destroyed,  during  the  life  of 
the  policy,  by  a  fire  which  "originated  from,  and  was 
caused  by  an  explosion  of  one  of  the  boilers  of  the  steam 
engine,  belonging  to  and  used  in  the  said  india  rubber 
factory,  and  covered  by  said  policy,"  the  company  is  not 
liable  for  the  loss,  even  though  a  steam  engine  was  neces- 
sary, and  ordinarily  used  in  the  carrying  on  of  an  india 
rubber  factory.  Hayward  v.  Liverpool  &  London  Fire 
&  Life  Ins.  Co.  7  Bosw.  N.  Y.  385.     1860. 

§  21.  If  a  policy  on  personal  property  is  endorsed 
with  an  agreement  for  the  removal  of  the  property  to 
another  building,  and  for  the  continuance  of  the  policy  in, 
force  as  to  the  property  after  removal,  it  becomes  in  effect 
a  new  contract  between  the  parties,  and  a  new  risk  takea 
by  the  company.  And  where  some  elements  of  the  new 
risk  existed  which  were  forbidden  by  the  original  policy, 
but  which  were  known  to  the  company  when  the  new  risk 
was  taken,  their  existence  does  not  affect  the  validity  of 
the  new  insurance.  Rathbone  v.  City  Fire  Ins.  Co.  31 
Conn.  193.     1862. 

§  22.    If  merchandise  situate  in  a  building  containing 

38 


594 


BISK. 


several  store-rooms  he  insured,  and  upon  the  policy  there 
is  an  uncertainty  as  to  whether  it  was  intended  to  cover 
merchandise  in  all  the  store-rooms,  the  insurers  will  be  lia- 
ble for  a  loss  occurring  in  any  one  of  them.  The  language 
of  the  policy  is  the  insurers',  and  must  be  taken  most 
strongly  against  them.  Franklin  Fire  Ins.  Co.  v.  Upde- 
graff,  43  Penn.  St.  350.     1862. 

§  23.  A  policy  of  insurance  against  fire  provided  that 
the  policy  should  be  void  if  the  premises  were  used  for 
storing  or  keeping  therein  any  article  included  in  certain 
classes  of  hazards  annexed  1 1  the  policy  "  except  as  herein 
specially  provided,  or  hereafter  agreed  to  bv  the  insurer  in 
writing  upon  this  policy."  Held,  that  wnere  the  policy 
was  on  a  stock  of  goods  insured  under  the  general  desig- 
nation of  "groceries,"  which  term  included  some  of  these 
hazardous  articles,  the  insurance  by  this  designation  did 
specially  provide  for  them  "  in  writing  upon  the  policy." 
Niagara  Fire  Ins.  Co.  v.  DeGraff,  12  Mich.  124.     1863. 

§  24.  A  policy  of  insurance  against  fire  covers  all  loss 
which  necessarily  follows  from  the  occurrence  of  a  fire, 
whenever  the  injury  arises  directly  or  immediately  from 
the  peril,  or  necessarily  fi'om  incidental  and  surrounding 
circumstances,  the  operation  and  influence  of  which  could 
not  be  avoided.  Brady  v.  North  Western  Ins.  Co.  11 
Mich.  425.     1863. 

§  25.  Spirituous  liquors  illegally  kept  for  sale  may, 
notwithstanding,  be  lawfully  insured  against  destruction 
by  fire.  The  rjsks  insured  against  are  not  the  consequences 
of  illegal  acts,  but  of  accidents.  Niagara  Fire  Ins.  Co. 
V.  DeGrafi;  12  Mich.  124.     1863. 

§  26.  Where  an  insurance  company  in  the  City  of 
New  York  insured  the  building  in  that  city,  known  as  the 
Ciystal  Palace,  which,  with  the  public  exhibitions  that  it 
had  been  erected  for  and  to  which  for  a  number  of  years 
it  had  been  exclusively  devoted,  were  matters  of  great 
public  notoriety  and  interest ;  and  it  was  described  in  the 
policy  as  the  building  lately  owned  by  tlij  Association  for 
the  Exhibition  of  the  Industry  of  all  nations ;  and  the  de- 
fendants also  insured  certain  property  in  the  building  as 


BISE. 


595 


^*  belonging  to  exhibitors ;"  Heldy  that  they  must  be  deemed 
to  have  been  acquainted  with  the  business  to  which  the 
building  was  appropriated,  the  nature  of  the  objects  ex- 
hibited, and  the  means  employed  to  exhibit  them,  and  have 
intended  to  include  in  the  risk  such  business  and  the  em- 
ployment of  all  such  usual  means;  and  that  the  use  of  fire 
and  steam  for  the  purpose  of  the  exhibition  of  machinery, 
and  the  keeping  of  a  restaurant,  with  liquors  and  cigars, 
and  a  kitchen  with  ovens,  were  all  to  be  deemed  parts  of 
the  exhibition,  and  did  not  defeat  the  insurance.  Mayor, 
<fec.  of  N.  Y.  V.  Hamilton  Fire  Ins.  Co.  10  Bosw.  N.  Y.  537. 
1863. 

§  27.  A  policy  of  insurance  upon  goods  "  contained 
in  the  third  story  of  a  four-story  building,"  over  two  spec- 
ified numbers  of  a  certain  street,  will  cover  such  goods 
after  their  removal  into  another  room  subsequently  hired 
and  occupied  by  the  insured  in  the  same  story  of  the  same 
building;  although  the  policy  provides  that  it  shall  be 
void  if  the  property  insured  shall  be  I'emoved  without  ne- 
cessity, to  any  other  place.  West  v.  Old  Colony  Ins.  Co.  9 
Allen,  Mass.  316.     1864. 

§  28.  Where  the  property  described  in  a  policy,  and 
the  purposes  to  which  it  is  dedicated,  sufficiently  indicate 
the  character  and  nature  of  the  articles  to  be  kept  there, 
and  the  business  to  be  transacted,  and  the  nature  and  ex- 
tent of  the  risk  must  have  been  known  to  the  insurers  to 
embrace  articles  and  pursuits  specified  as  hazardous,  extra- 
hazardous, and  special  hazards,  the  carrying  on  of  a  busi- 
ness, in  the  building,  denominated  hazardous  or  extra-haz- 
ardous, or  specified  in  the  memorandum  of  special  rates, 
without  permission  of  the  insurers,  will  not  vitiate  the  pol- 
icy. Mayor,  &c.  of  N.  Y.  v.  Brooklyn  Fire  Ins.  Co.  41 
Barb.  N.'Y.  231.     1864. 

§  29.  A  policy  insuring  premises  against  "  such  loss 
or  damage  as  should  or  might  be  occasioned  by  fire  to  the 
property  therein  mentioned,"  does  not  cover  damage  re- 
sulting from  the  disturbance  of  the  atmosphere  by  tlie  ex- 
plosion of  a  gunpowder  magazine  a  mile  distant  from  the 
premises  insured.  The  words  "  loss  or  damage  by  fire  " 
are  to  be  construed  as  ordinary  people  w^ould  construe 


i 


596 


RISK. 


them.    Everett  v.  London  Assurance,  19  Com.  Bench,  N. 
S.  126.  (115  Eng.  C.  L.)     1865. 

§  30.  Where  a  policy  on  a  theatre  contained  a  clause 
that  the  insurers  should  not  be  liable  on  account  of  any 
loss  by  a  fire  originating  in  the  theatre  proper,  and  a  brick 
wall  of  the  building  became  so  heated  from  without  as  ta 
set  fire  to  the  wood  work  within  the  theatre ;  Held^  that 
this  was  not  a  fire  originating  in  the  theatre  proper,  within 
the  meaning  of  the  policy,  and  that  the  insurers  were  li- 
able. Sohier  v.  Norwich  Fire  Ins.  Co.  11  Allen,  Mass.  336. 
1865. 

§  31.  Where  a  policy  excepts  "  loss  by  fire  occasioned 
by  mobs  or  riots,"  the  exception  clause  does  not  extend  to 
a  loss  by  fire  occasioned  proximately  by  the  burning  of  an 
adjoining  bridge  by  order  of  the  military  authorities  to  pre- 
vent the  advance  of  an  armed  force  of  the  public  enemy. 
Harris  v.  York  Mut.  Ins.  Co.  50  Penn.  St.  341.     1865. 

§  32.  Where  a  policy  issued  to  a  druggist  insured 
him  against  loss  or  damage  by  fire,  on  his  stock  of  drugs, 
chemicals  and  other  merchandise,  "  hazardous  and  extra- 
hazardous ;"  Ilelil^  that  the  policy  covered  a  fire  occasioned 
by  the  insured  putting  upon  a  stove  on  the  premises  about 
five  gallons  of  an  inflammable  ointment,  for  the  purpose  of 
warming  it ;  it  being  usual  for  druggists  to  mix  and  melt 
ointments  in  that  manner.  Brown  v.  Kings  County  Fire 
Ins.  Co.  31  How.  N.  Y.  508.     1805. 

§  33.  A  policy  of  insurance  upon  a  building  is  an 
insurance  upon  the  building  as  such,  and  not  upon  the 
materials  of  which  it  is  composed.  If,  from  any  defect  of 
construction  or  overloading,  the  building  fall  into  ruins, 
and  subsequently  the  materials  take  fire,  the  insurer  is  not 


liable  for  the 
431.     1866. 


Joss.     Nave  v.  Home  Mut.  Ins.  Co.  37  Mo. 


§  34.  Thc:  term  "  merchandise  "  in  a  policy  of  insur- 
ance against  loss,  etc.,  by  fire,  on  grain  and  other  merchan- 
dise in  each  of  two  warehouses,  which  were  kept  by  the 
assured,  who  were  grain  merchants,  for  the  purpose  of 
receiving  and  storing  c^rain,  does  not  include  a  platform 
scale,  bedded  in  the  floor  of  one  of  the  warehouses,  nor 


\ 


h 


RISK. 


597 


inch,  N. 

I  clause 
of  any 
a  brick 
ut  as  to 
!?</,  that 
,  within 
were  li- 
ass.  336. 

;asioned 
[tend  to 
ig  of  an 
3  to  pre- 
1  enemy. 
865. 

insured 
f  drugs, 
id  extra- 
casioned 
es  about 
rpose  of 
ind  melt 
Qty  Fire 


Ig  IS  an 
ipon  the 
defect  of 
o  ruins, 
er  is  not 
37  Mo. 

Df  insur- 
nerchan- 
b  by  the 
rpose  of 
platform 
uses,  nor 


"''^ 


belting,  nor  a  corn  sheller,  nor  a  beam  scale,  which  things 
had  been  dispensed  with  in  the  business,  but  which  had 
not  been  offered  for  sale  ;  nor  tools,  implements,  or  articles 
of  property  purchased  for  use  in  the  warehouses,  as  being 
necessary  or  convenient  in  the  business,  and  which  were 
used  as  occasion  required.  Kent  v.  Liverpool  ife  London 
Ins.  Co.  26  Ind.  294.     18G6. 

§  35.  A  policy  provided  that  the  insurers  would  not 
be  liable  for  loss  or  tlamage  by  explosion, "  except  for  such 
loss  or  damage  as  shall  arise  from  explosion  by  gas."  In 
the  insured  premises,  which  were  used  for  the  business  of 
extracting  oil,  an  inflammable  and  explosive  vapor  evolved 
in  the  process,  escaped  and  caught  fire,  setting  nre  to  other 
things ;  it  afterwards  exploded  and  caused  a  farther  fire, 
besides  doing  damage  by  the  explosion.  Held,  that  "gas" 
in  the  policy  meant  ordinary  illuminating  gas ;  that  the 
exemption  of  liability  for  loss  V)y  explosion  was  not  limited 
« to  cases  where  the  fire  was  originated  by  the  explosion, 
but  included  cases  where  the  explosion  occurred  during  a 
fire,  and  that  the  insurers  were  not  liable  either  for  the 
damage  from  the  explosion  nor  for  that  from  the  further 
fire  caused  by  the  explosion.  Stanley  v.  Western  Ins.  Co. 
Law  Rep.  3  Ex.  71.     1868. 

§  36.  The  insurer  is  lial)le,  where  a  house  is  blown 
up  with  gunpowder  to  stop  the  spread  of  fire  ;  there  being 
no  means  of  extinguishing  the  fire  by  water.  The  clause 
in  the  policy  excluding  loss  by  explosion  of  gunpowder, 
applying  only  to  a  fire  oi'iginating  from  the  explosion  of 
gunpowder.  It  is  like  a  loss  by  water,  the  first  fire  is  the 
proximate  cause.  Greenwald  v.  Ins.  Co.  3  Phila.  Rep.  323. 
1859. 

§  37.  The  policy  was  on  "  stock  in  trade,  consisting 
of  the  usual  variety  of  a  country  store  except  dry  goods," 
with  permission  to  keep  burning  fluid  and  gunpowder,  and 
made  the  application,  wherein  was  required  a  specification 
in  case  of  goods  whether  they  were  hazardous,  extra-hazard- 
ous, ifec,  a  part  of  it.  Some  of  the  articles  denominated 
hazardous,  c%c.,  being  shown  by  parol  to  compose  part  of 
the  v.sual  variety  of  a  country  store,  the  policy  is  not  vio- 
lated by  keeping  them,  and  a  special  permission  in  the 


598 


BISK. 


policy  to  keep  burning  fluid  and  gunpowder,  wtich  are 
classed  as  uninsurable  at  any  premium,  does  not  change 
the  construction.  Whitmarsh  v.  Conway  F.  Ins.  Co.  16 
Gray,  359.     1860. 

§  38.  A  condition  requiring  notice  if  any  furnace,  <fec., 
should  be  introduced  in  the  building  insured,  is  not  broken 
by  making  additions  thereto,  and  introducing  furnaces  in 
the  additions.  Heneker  v.  Brit.  Am.  Ass.  Co.  13  U.  C., 
C.  P.  90.     1863. 

§  39.  Insurance  on  a  building  used  for  certain  pur- 
poses as  "  for  the  purpose  of  an  industrial  exhibition  "  car- 
ries with  it  all  uses  incidental  and  appropriate  thereto — 
as  the  use  of  machinery  or  exhibition  of  articles  that  would 
be  classed  as  hazardous,  extra-hazardous,  &c.  Mayor  of 
N.  Y.  V.  Exchange  F.  Ins.  Co.  3  Keyes,  436.     1867. 

§  40.  Insurance  on  a  building  and  stock  of  goods,  such 
as  is  usually  kept  in  country  stores,  had  a  clause  of  forfeit4 
ure  in  case  of  use  for  keeping  any  articles  denominated 
hazardous,  <fec.,  among  which  classes  were  turpentine  and 
gunpowder.  Jleldy  these  articles,  being  proved  to  be  usu- 
ally kept  in  a  country  store,  are  excepted  from  the  opera- 
tion of  the  clause.  Findar  v.  Kings  Co.  F.  Ins.  Co.  36  N. 
Y.  648.     1867. 

§  41.  Insurance  on  a  factory,  including  steam  engine, 
against  loss  by  fire,  excepted  losa  by  "any  explosion." 
Meld,  the  exception  includes  fire  by  explosion  of  the  steam 
boiler  as  well  as  external  explosions,  although  the  boiler 
was  by  necessary  implication  itself  insured.  Hayward  v. 
Liverpool  &  Lond.  Ins.  Co.  3  Keyes,  456.    1867. 

§  42.  An  insurer  taking  a  risk  on  a  factory  of  any 
kind  is  presumed  to  know  the  incidents  and  adjuncts  ap- 
pertaining to  it.  In  insuring  a  sulphuric  acid  manufactory, 
he  is  presumed  to  have  contemplated  the  necessity  of 
making  nitric  acid  as  a  part  of  tnr  method.  And  when 
he  has  the  premises  inspected,  he  has  notice  of  all  that  an 
expert  thould  see,  and  cannot  set  up  the  incapacity  of  his 
inspector.  Semble,  that  he  has  knowledge  of  the  incom- 
pleteness of  the  buildings  that  are  in  process  of  erection. 
Washington  Ins.  Co.  v.  JDavison  et  al.  30  Md.  91.    1868. 


BISK. 


599 


vhicla.  are 
Dt  change 
IS.  Co.  16 

nace,  &c.^ 
3t  broken 
rnaces  in 
13  U.  C, 

rtain  pur- 
tion  "  ear- 
thereto — 
lat  would 
Mayor  of 
67. 

)ods,  such 
of  forfeit* 
lominated 
itine  and 
to  be  usu- 
he  opera- 
::o.  36  N. 


m  engine, 
jplosion." 
the  steam 
he  boiler 
lyward  v. 

ry  of  any 
uncts  ap- 
lufactory, 
3es8ity  of 

nd  when 
11  that  an 
lity  of  hia 
le  incom- 

erection. 
1.     1868.. 


liability  for  loss  "  by 
*  *  military  or  usurped 


§  43.  Clause  that  insurers  will  not  be  liable  for  loss 
"  from  fires  in  buildings  unprovided  with  a  good  and  sub- 
stantial stove  or  brick  chimney,"  does  not  require  the  stove 
to  be  built  into  and  form  part  of  such  chimney.  Madsden 
V.  Phoenix  F.  Ins.  Co.  1  So.  Car.  Rep.  N.  S.  24.     1868. 

§  44.    The  clause  excludin 
means  of  invasion,  insurrection, 

power ;  "  Held,  to  refer  to  acts  by  an  army  of  invasion  or 
rebellion,  though  done  without  any  direct  command  from 
officers;  the  question  is  whether  the  loss,  whatever  the 
cause  of  the  fire,  occurred  in  consequence  of  such  military 
or  usurped  power  as  a  proximate  cause.  Barton  v.  Home 
Ins.  Co.  of  N.  Y.  42  Mo.  156.     1868. 

§  45.  A  policy  insuring  cotton  in  a  warehouse,  ex- 
cepted losses  by  fires  by  means  of  explosions.  An  explo- 
sion took  place  in  a  warehouse  across  the  street,  scattering 
combustibles,  resulting  in  an  extensive  fire.  The  explosion 
set  fire  to  a  third  building,  from  which  the  building  con- 
taining the  cotton  caught.  Held,  there  was  no  new  cause 
intervening,  and  the  explosion  was  the  causa  proxima,  and 
the  insurers  are  not  liable.  Insurance  Co.  v.  Tweed,  7 
Wallace,  44.     1868. 

§  46.  Consent  to  a  certain  occupation — to  wit,  for  a  fac- 
tory— carries,  as  incidents,  an  implied  consent  to  use  such 
articles  as  are,  necessanr  or  common  to  such  occupation, 
though  otherwise  prohibited  in  the  policy,  the  consent 
waiving  the  prohibition,  as  benzine  in  a  window-shade 
factory.    Viele  v.  Germania  Ins.  Co.  26  Iowa  9.    1868. 

§  47.  A  policy  on  a  stock  of  meat  was  to  be  vitiated 
by  the  keeping  of  various  articles,  among  which  was  salt- 
petre ;  the  assured  kept  saltpetre  in  a  keg  for  sale ;  it  was 
proved  to  be  customary  for  meat  houses  to  keep  fractions 
of  a  pound  of  saltpetre  to  preserve  the  meat.  Hetdy  the  com- 
pany's knowledge  of  the  character  of  the  business  and  of 
the  necessity  of  keeping  saltpetre,  is  no  defense  to  the  keep- 
ing a  quantity,  and  as  merchandise  on  sale ;  and  the  policy 
was  vitiated,  whether  such  keeping  was  dangerous  or  not. 
Commercial  Ins.  Co.  v.  Mehlman,  48  111.  313.     1868. 

§  48.    Policy  on  house,  $400 ;  grain  in  stack,  $600 ;  hay 


i"l 


600 


BISK. 


in  stack,  $320 ;  7  horses,  $750,  situated,  section  22.  Clause 
avoiding  the  policy  for  increase  of  risk,  by  erecting  adja- 
cent buildings  or  otherwise ;  the  assured,  hauling  his  grain 
to  market,  put  up  his  team  over-night  on  the  way  in  a  hotel 
barn  where  it  was  more  exposed  to  fire  than  on  the  farm, 
and  one  of  the  horses  was  lost  by  the  burning  of  the  barn. 
Held,  the  description  of  locality,  section  22,  did  not  limit 
the  use  of  the  horses  thereto,  but  the  risk  extended  to  all 
ordinary  use  of  the  team  on  the  farm  or  temporarily  away 
— the  hotel  barn  not  being  such  as  an  ordinarily  prudent 
man  would  not  have  selected.  Peterson  v.  Mississippi 
Valley  Ins.  Co.  24  Iowa,  494.     1868. 

§  49.  Policy  on  a  wagon-maker's  shop  contained  con- 
ditions excluding  liability  for  losses  from  burning  fluid,  «fec. 
<fec.  In  the  shop  were  paints  and  a  half  barrel  of  benzine, 
which  caused  the  burnme.  Held^  though  these,  by  them- 
selves, would  belong  to  tne  class  excluded,  yet  it  being 
proved  they  were  usual  in  the  manufacture  of  wagons,  and 
generally  kept  in  the  same  shop,  they  were  covered  by  the 
policy.  Archer  v.  Merchants'  <fe  Manuf.  Ins.  Co.  43  Mo. 
434.     1869. 

§  50.  Insurance  was  procured  to  fill  up  an  uninsured 
gap  between  the  landing  and  reshipment,  "on  cotton 
awaiting  shipment  per"  a  certain  vessel,  on  Oct.  10.  It 
appears  the  cotton  had  been  ])urned  on  Oct.  6.  Held^  a 
fire  policy  on  a  distant  and  unknown  subject  may  be  re- 
trospective, if  so  intended,  equivalent  to  the  marine  "  lost 
or  not  lost,"  and  such  intent  was  evident  here.  Security 
Fire  Ins.  Co.  of  N.  Y.  v.  Kentucky  M.  tfe  F.  Lis.  Co.  7  Bush, 
81.     1869. 

§  51.  When  getting  insurance  on  his  building  used 
as  a  "  flax  factory,"  the  assured  notified  agent  of  his  wish 
to  put  in  machinery  for  rope-making,  and  was  told  that 
"  flax  factory "  was  a  broad  enough  term  to  embrace  it. 
Held^  rope-making  being  quite  common  and  usual  in  such 
establishments^  the  agent's  definition  of  "  flax  factory  "  was 
correct ;  also,  an  agent  authorized  to  take  policies  is  em- 
powered to  give  a  construction  to  the  written  portion,  if 
no  more,  and  if  he  misled  the  assured  in  procuring  the 
policy,  the  company  are  estopped  by  his  declaration. 
Aurora  Fire  Ins.  Co.  v.  Eddy,  55  111.  213.    1870. 


BISK. 


601 


§  52.  The  application  stated  the  building  was  used 
for  "  tobacco  pressing ;  no  manufacturing ;"  when,  in  fact, 
an  addition  to  the  building  was  used  to  manufacture  hogs- 
heads for  thv  tobacco.  Jield,  if  it  is  generally  customary 
for  tobacco  pressers  to  prepare  their  own  hogsheads — 
which  is  a  question  for  the  jury, — such  preparation  is  an 
incident  to  the  business,  which  the  insurers  are  supposed 
to  be  aware  of,  and  not  a  concealment  constituting  a 
breach  of  warranty.  Sims  v.  State  Ins.  Co.  of  Hannibal, 
Mo.  47  Mo.  54.    1870. 

§  53.  Policy  on  a  "  general  stock  of  iron  and  hard- 
ware "  provided  against  keeping  gunpowder  without  con- 
sent. Held,  that  evidence  that  it  is  well  understood  that 
the  words,  "  general  stock  of  iron  and  hardware,"  included 
gunpowder  in  canisters,  to  the  extent  of  2.5  lbs.,  is  not  ad- 
missible, and  therefore  such  plea  is  demurrable.  Mason 
V.  Hartford  Fire  Ins.  Co.  29  U.  C,  Q.  B.  585.     1870. 

§  54.  Policy,  with  a  clause  of  avoidance  for  keeping* 
goods  enumerated  among  the  hazardous  classes,  was  issued 
on  a  stock  of  "  fancy  goods,  toys,  and  other  articles  in  the 
line,"  of  a  "  German  jobber  and  importer,"  Avith  privilege  to 
"kee^jire-crackers  ;  fire-crackers  were  among  the  "  hazardous 
No.  2 ; "  "  specially  hazardous  "  included  five-worhs.  Held, 
that  evidence  to  show  fiVQ-worlcs  are  included  in  "  other  ar- 
ticles in  his  line  of  business,"  is  inadmissible,  since  the  policy 
requires  the  "  specially  hazardous "  to  be  specially  writ- 
ten.    Steinbach  v.  Insurance  Co.  13  Wallace,  183.     1871. 

§  55.  Loss  by  explosion  was  excepted  in  a  policy 
against  fire.  An  explosive  mixture  of  whisky  vapor  and  air 
coming  in  contact  with  a  gas  jet,  immediately  exploded, 
causing  a  fire  which  destroyed  the  premises.  Held,  that 
the  explosion  being  the  efficient  cause,  the  policy  did  not 
cover  the  loss.  The  explosion  was  like  the  "  crack  of  a 
gun,"  yet,  being  of  sufficient  force  to  result  in  loss,  though 
it  had  not  rent  the  building  asunder,  was  still  an  explo- 
sion. United  F.  L.  <fe  M.  Ins.  Co.  v.  Foote,  22  Oh.  St.  340. 
1872. 

§  56.  Where  the  insurer  is  not  to  be  liable  for  any  loss 
"occasioned  by  or  resulting  from  any  explosion  whatever," 


V 


I 

■ 


^f 


602 


SET-OFF. 


whether  of  certain  enumerated  articles  "  or  any  explosive 
substance,"  "  unless  expressly  insured  against  and  special 
premium  paid  therefor,"  it  was  claimed  that  the  insurance 
being  upon  whisky  in  the  process  of  rectification,  a  loss 
from  the  whisky  vapor  becoming  explosive  was  contem- 
plated, and  impliedly  insured  against ;  but,  Held,  1st,  that 
this  vapor  having  escaped  from  its  confinement  and  passed 
into  the  still-room,  was  no  longer  part  of  the  merchandise 
insured,  and  was  not  under  the  protection  of  the  policy ; 
2d,  although  such  explosion,  from  the  nature  of  the  prop- 
erty, was  in  contemplation  in  taking  the  risk,  yet  the  re- 
quirement that  it  be  "  expressly  insured  against,  and  a  spe- 
cial premium  paid  therefor,"  prevents  its  being  construc- 
tively contracted  against  without  such  express  insurance 
and  special  premium.  United  F.  L.  &  M.  Ins.  Co.  v.  Foote, 
22  Oh.  St.  340.     1872. 

See  General  Average.  Lightning.  Theft.  Also,  Application,  §  55.  Con- 
struction, 81,  82,  37,  39.  Description  of  Property  Insured,  25,  26.  Encum- 
brance, 50.  Estoppel,  15.  Evidence,  91,  96.  Increase  of  Risk,  40.  Ques- 
tions for  Court  and  Jury,  14,  20,  21.  Removal,  1,  2,  8.  Renewal  of  Policy,  P. 
Use  and  Occupation,  66.    What  Property  is  Covered  by  Policy,  84. 


SET-OFF. 

§  1.  Where  an  agent  effects  insurance  on  account  of 
his  principal,  and  the  policy  contains  a  clause,  that  in  the 
event  of  loss,  payment  is  to  be  made  to  the  agent ;  the 
promise  must  be  understood  to  be  made  in  his  representa- 
tive character,  and  not  in  his  own  right.  The  company 
cannot,  therefore,  set  off  a  debt  due  from  the  agent  to 
them,  against  the  amount  due  from  them  by  virtue  of  such 
policy.  Braden  v.  Louisiana  State  Ins.  Co.  1  La.  220. 
1830. 

§  2.  A  receiver  should  allow  offset  of  liquidated 
debt  due  to  the  corporation,  against  unliquidated  debt 
due  from  them.  In  equity,  the  offset  extends  to  all  mutual 
credits,  arising  ex  contractu    between    ^'  ginal    parties. 


SET-OFF. 


603 


ixplosive 
I  special 
nsurance 
n,  a  loss 

contem- 
1st,  that 
i  passed 
chandise 

policy ; 
he  prop- 

the  re- 
id  a  spe- 
ionstruc- 
isuraace 
7.  Foote, 


65.  Con- 
Encum- 
\0.     Ques- 
Policy,  9. 


ount  of 
'  in  the 
at;  the 
'esenta- 
>mpany 
jent  to 
of  such 
ft.  220. 

lidated 
1  debt 
nutual 
)arties. 


1 


Holbrook  v.  American  Fire  Ins.  Co.  6  Paige,  N.  Y.  220. 
1836. 

§  3.  An  insurance  company  loaned  money  on  a  bond 
and  mortgage,  and  at  the  same  time  insured  the  building 
subject  to  the  mortgage.  In  the  great  fire  in  New  York, 
the  building  was  destroyed  and  the  company  rendered  in- 
solvent. Ileldj  that  the  assured  might  set  off  tlie  amount 
of  his  loss  under  the^  policy,  against  the  bond  and  mort- 
gage. Receivers  of  Globe  Ins.  Co.  2  Edwards,  N.  Y. 
Ch.  625.     1836. 

§  4.  In  the  great  fire  of  1845  at  Pittsburgh,  the  losses 
exceeded  the  entire  funds  of  the  Alleghany  County 
Mutual  Insurance  Company,  including  the  one  per  cent, 
assessed  on  the  amount  msured  after  tne  exhaustion  of  all 
the  premium  notes.  The  assured  had  removed  his  goods 
from  apprehension  of  fire,  and  suffered  damage  to  the 
amount  of  $100,  and  in  action  against  him  by  the  company 
for  the  recovery  of  balance  of  his  premium  note,  $152, 
and  1  per  cent,  on  property  insured,  $32,  or  total  of 
$184,  he  contended  for  a  set-off  of  the  $100  damage 
sustained  by  himself.  Held,  that  where  the  funds  of  the 
company  are  not  adequate  to  pay  all  the  losses  occasioned 
by  an  extensive  fire,  the  entire  funds  of  the  company 
belong  to  the  losers  pro  rata  ;  and  such  set-off  could  not 
be  allowed,  as  assured  would  thereby  receive  more  than 
the  other  losers.  Hillier  v.  Alleghany  Co.  Mut.  Ins.  Co. 
3  Penn.  St.  470.     1846. 

§  5.  Where  a  premium  note  in  advance  had  been  given 
to  a  mutual  insurance  company,  and  the  maker  afterwards 
effected  insurances  with  the  company,  for  the  premiums  on 
which  he  stood  a  debtor  on  their  books  when  the  com- 
pany failed ;  Held,  that  on  paying  such  premiums,  he  was 
entitled  to  have  the  same  amount  deducted  from  the  pre- 
mium note  in  suit,  and  the  recovery  would  be  for  the  bal- 
ance of  the  note.  Merchants'  Mut.  Ins.  Co.  v.  Leeds,  1 
Sandf.  N.  Y.  183.     1847. 

§  6.  "Where  A.  was  liable  to  the  company  for  unpaid 
installments  on  his  stock  notes  or  shares,  and  the  company 
became  insolvent,  and  A.  purchased  from  a  stranger  an 


604 


SET-OFF. 


unpaid  balance  due  on  a  policy  of  insurance  by  the  com- 
pany ;  Held^  that  he  could  not  set  off  any  more  of  such 
claim  against  the  company,  than  the  'pro  rata  dividend  of 
the  assets  of  the  company  upon  losses.  Long  v.  Pennsyl- 
vania Ins.  Co.  6  Penn.  St.  421.     1847. 

§  7.     Where  loss  has  been  sustained,  and  there  has 

been  a  vote  to  pay,  the  company  may  be  garnisheed ;  but 

may  set  off  all  sums  assessed  on  premium  note,  and  his 

just  proportion  of  losses  up  to  the  time  of  service  of 

process.    Swamscot  Machine  Co.  v.  Partridge,  5  Fost.  N. 

H.  369.     1852. 
« 

§  8.  In  an  action  upon  a  premium  note  by  a  receiver, 
any  set-off  of  the  maker,  which  could  have  been  pleaded 
against  the  company,  is  good  as  against  the  receiver,  al- 
though the  note  did  not  mature  until  after  the  receiver 
was  appointed.  Berry  v.  Brett,  6  Bosw.  N.  Y.  627. 
1860. 

§  9.  A  premium  note  made  by  defendant  was  ille- 
gally transferred  to  the  plaintiff.  The  defendant  had 
'..  Ims  against  the  company.  Held^  that  defendant,  being 
one  of  the  creditors  of  the  company,  might  contest  the 
legality  of  the  transfer,  and  thus  throw  the  note  back  into 
the  hands  of  the  company,  in  order  to  avail  himself  of  the 
existing  equities  between  them.  Litchfield  v.  Dyer,  40 
Me.  31.     1858. 

§  10.  A  member  of  the  General  Mutual  Insurance 
Company  in  New  York,  during  the  term  of  his  policies, 
sustained  several  losses,  which  were  adjusted,  but  not  paid 
by  the  company.  Subsequently,  he  surrendered  his  poli- 
cies, and  had  endorsed  on  the  back  of  each  the  followmg : 

''  It  is  agreed  to  return  premium  of allowed  under 

this  policy,  to  be  paid  ratably  out  of  the  assets  of  the  com- 
pany when  divided.  This  policy  is  hereljy  canceled  from 
1854."  Ildd^  that  under  the  charter  of  this  com- 
pany, each  dealer  was  a  corporator,  and  interested  in  all 
the  premiums  paid  by  others ;  that  each  dealer  was  inter- 
ested in  the  earned  premiums  of  every  other  dealer,  and 
the  corporators  were  mutual  guarantors  of  each  other ;  and 
that  under  this  charter  each  member  must  pay  what  he 


STOCK    NOTES   AND   SUBSCRIPTIONS. 


605 


owed  the  corporation,  and  each  would  be  entitled  to  his 
]pro  rata  dividend  of  the  assets — and  that  he  could  not, 
therefore,  set  off  his  losses  or  any  of  them  against  his  pre- 
mium notes,  either  in  hands  of  the  company,  or  its  re- 
ceiver, but  according  to  the  terms  of  his  agreement  en- 
dorsed on  the  policies,  must  pay  his  notes  in  full,  and 
receive  his  pro  rata  proportion  of  the  assets,  with  other 
members.  Lawrence  v.  Nelson,  4  Bosw.  N.  Y.  240.  1859. 
Affirmed,  21  N.  Y.  158.  1860.  See  also,  Lawrence  v. 
McCready,  6  Bosw.  N.  Y.  329.     1860. 

§  11.  The  policy  of  a  mutual  company  assigned  after 
the  loss  is  subject  to  all  set-offs  against  the  assignor,  such 
as  an  assessment  in  his  premium  note,  and  all  other  equities. 
Archer  v.  Merchants'  <fe  Manufacturers'  Ins.  Co.  43  Mo. 
434.     1869. 

§  12.  In  a  proceeding  to  recover  from  a  stockholder 
a  judgment  against  the  insolvent  company,  the  stockholder 
cannot  offset  the  face  value  of  a  judgment  against  the 
company,  purchased  by  him  while  president  of  the  com- 
pany, on  speculation,  but  only  what  he  paid  for  it,  it  be- 
ing against  public  policy  to  allow  an  officer  to  speculate 
for  private  eain.  Lingle  v.  Nat'l  Ins.  Co.  (Hogan  stock- 
holder), 45  Mo.  109.     1869. 

See  Assignment,  §  50.    Garnishment  or  Trustee,  3,  4.    Insolvency,  3,    In- 
terest in  Policy,  3.    Premium  Notes  in  advance,  1.     Receivers,  9. 


STOCK  NOTES  AND  SUBSCRIPTIONS. 

§  1.  The  defendant,  who  was  a  director  in  the  Mo- 
hawk Insurance  Company,  subscribed  for  1042  shares  of 
capital  stock,  and  gave  his  note  to  the  company  for 
$20,840,  the  amount  thereof.  The  majority  of  the  stock 
was  subscribed  for  by  the  other  directors  in  the  same  way. 
After  doing  business  for  two  years,  the  company  being  un- 
fortunate, and  the  other  directors  becoming  insolvent,  the 
defendant  negotiated  a  sale  of  his  shares  to  the  president 


606 


STOCK    NOTES   AND   SUBSCRIPTIONS. 


of  the  company,  who  was  insolvent,  and  a  tranrfer  of  the 
shares  was  entered  on  the  books  of  the  company,  and  the 
president's  note  was  substituted  in  lieu  of  the  note  of  de- 
fendant. Six  thousand  dollars  was  paid  to  the  president 
as  consideration  for  this  favor.  No  official  sanction  to 
this  proceeding  was  given  by  the  directory.  Afterwards, 
on  application  of  the  creditors,  a  receiver  was  appointed, 
who  brought  suit  against  defendant.  Held^  that  the 
transaction  between  defendant  and  the  president  was  a 
fraud  on  the  creditors,  and  judgment  was  rendered  against 
defendant  for  the  amount  of  his  original  note  and  inter- 
est, less  the  sum  of  $4,500,  which  the  president  had  paid 
in  to  the  company  on  bis  substituted  note,  out  of  the 
$6,000  consideration  which  he  received  from  defendant. 
Nathan  v.  Whitlock,  3  Edw.  Ch.  N.  Y.  215.     1838.  " 

§  2.  In  an  action  on  a  stock  note,  where  payment  was 
promised  according  to  assessment  by  order  of  .the  direct- 
ory; Held^  that  whether  the  exigencies  of  the  company 
required  an  assessment,  was  a  matter  of  discretion  for  the 
directory;  and  could  not  be  inquired  into  in  the  case. 
Judaic  V.  American  Live  Stock  Ins.  Co.  4  Ind.  333. 
1853. 

§  3.  Whether  the  subscription  was  taken  by  one 
authorized  by  the  directors  so  to  do,  after  they  have  con- 
firmed the  act,  is  immaterial ;  and  so,  whether  a  percent- 
age was  paid  doAvn,  as  required  by  the  terms  of  subscrip- 
tion, is  immaterial,  and  does  not  affect  the  validity  of  the 
subscription  or  note.  Judaic  v.  American  Live  Stock  Ins. 
Co.  4  Ind.  333.     1853. 

§  4.  The  charter  act  provided  that  certain  commis- 
sioners named,  or  a  majority  of  them,  as  soon  as  a  certain 
number  of  shares  should  be  subscribed,  should  call  a 
meeting  of  stockholders  for  organization.     Held^  that  this 

Provision  was  directory;  and  that,  provided  the  stock- 
olders  did  meet  and  organize,  it  was  immaterial  whether 
the  meeting  was  in  pursuance  of  a  call  by  said  commis- 
sioners or  otherwise ;  and  that  such  a  failure  to  follow  the 
char£er  constituted  no  defense  to  an  action  on  the  sub- 
scription note.  Judaic  v.  American  Live  Stock  Ins.  Co. 
4  Ind.  333.     1853. 


STOCK    NOTES   AND   SUIBSCRIPTIONS. 


607 


§  6.  Notwithstanding  refusal  to  renew  stock  note  and 
forfeiture  thereby  of  stock,  the  maker  is  liable  for  his 
proportion  of  losses  upon  risks  taken  antecedent  to  such 
refusal,  under  the  2d  section  of  the  act  of  1813,  ch.  65 
(charter  of  Co.),  in  Maryland.  Murphy  v.  Patapsco  Ins. 
Co.  6  Md.  99.     1854. 

§  6.  The  charter  declared  that  the  capital  stock  should 
be  actually  paid  in,  before  it  shall  be  lawful  for  the  said 
company  to  commence  the  business  of  insurance ;  and  the 
company  is  authorized  to  invest  its  capital  in  public  stock, 
bonds  and  mortgages,  and  such  other  securities  as  the 
directors  may  approve.  It  appeared  that  the  whole  capital 
was  securely  invested,  that  the  subscription  to  the  stock 
was  made  in  good  faith,  that  the  company  went  on  and 
issued  policies  upon  the  faith  of  this  capital.  Held^  that 
individuals,  who  gave  their  obligations  to  constitute  this 
capital,  could  not  repudiate  them  on  the  ground  that  the 
stock  had  not  been  subscribed  and  paid  in.  The  securities 
are  not  void  because,  instead  of  going  through  the  formal- 
ity of  receiving  the  money,  and  then  paying  it  back  and 
taking  securities,  the  directors  took  the  securities  without 
this  ceremony.  One  stockholder  in  a  company,  because 
he  has  an  unsettled  account  with  them,  or  any  other  mat- 
ter of  dispute,  has  no  right  to  bring  a  company  into  this 
court  to  settle  all  their  account"  as  a  company.  When 
the  complainant  does  equity,  and  pays  up  the  installments 
already  assessed,  and  the  costs  of  the  suit  at  law,  the  court 
will  protect  him  against  any  assessment  not  based  upon 
other  stockholders.  Yard  v.  Pacific  Mut.  Ins.  Co.  2 
Stockton,  Ch.  N.  J.  480.    ,1856. 

§7.  A  subscription  of  $1,000  was  given  to  make  up 
the  capital  stock  of  a  company,  "on  condition  that  it 
should  not  be  operative  until  $300,000  had  been  sub- 
scribed ; "  and  company  commenced  operating  before  such 
amount  was  subscribed.  Held^  that  an  action  on  defend- 
ant's subscription  would  not  lie.  Berry  v.  Yates,  24  Barb. 
N.  Y.  199.    1857. 

§  8.  A  bill  was  brought  by  creditors  of  Knox  Assur- 
ance Company  against  said  company,  and  thirty-seven 
subscribers  to  the  capital  stock  of  the  company ;  alleging 


608 


STOCK    NOTES    AND   SUBSCRIPTIONS. 


that  the  creditors  had  obtained  judgments  against  the  com- 
pany upon  which  execution  had  been  issued  with  return 
of  "  no  property ; "  and  praying  relief  against  the  subscrib- 
ers to  the  extent  of  the  balance  remaining  unpaid  on  their 
subscriptions.  Default,  and  a  decree  thereupon,  were  en- 
tered against  the  company.  The  subscribers  defended  on 
the  ground  that  they  were  induced  to  subscribe,  and  to 
give  their  bonds  and  other  securities  for  the  amount  of 
their  subscriptions,  by  false  and  fraudulent  representa- 
tions of  the  agent  of  the  company,  touching  its  situation. 
On  the  trial  it  appeared  that  the  subscribers  paid  ten  per 
cent,  of  their  subscriptions,  and  after  having  had  full 
opportunity  to  know  the  situation  of  the  company,  organ- 
ized a  branch  of  the  corporation ;  and  that  it  was  not  till 
after  a  succession  of  losses,  and* "  after  taking  time  to 
consider  what  was  best  to  be  done,"  that  they  concluded 
to  consider  themselves  defrauded.  Held.,  that  this  defense 
came  too  late  ;  and  that  decrees  should  be  entered  against 
the  subscribers  severally,  for  the  arrears  on  their  shares  of 
capital  stock.  Ogilvie  v.  Knox  Ins.  Co.  22  How.  U.  S. 
380.     1851). 

§  9.  Under  the  charter  of  the  Ohio  Insurance  Com- 
pany, which  provides  that  the  directors  "  shall  have 
power  to  increase  the  stock  of  said  company  to  $200,000, 
on  such  terms  and  conditions  and  in  such  manner  as  to 
them  shall  seem  best,"  the  existing  stockholders  have  no 
exclusive  right  to  take  the  increased  stock  in  amounts 
proportionate  to  the  several  amounts  of  the  original  stock 
held  by  them.  Ohio  Ins.  Co.  v.  Nunnemacher,  15  Ind. 
294.     1860. 

§  10.  An  individual  taking  a  policy  of  insurance  and 
giving  his  promissory  note  to  the  company  for  the  pre- 
mium, cannot  be  made  a  stockholder  and  liable  for  the 
full  amount  of  the  note,  when  he  neither  knows  that  he  is 
assuming  any  such  obligation,  nor  intends  to  assume  it. 
Under  such  circumstances,  his  note  cannot  be  treated  as  a 
stock  note  and  collectable  without  a  previous  assessment. 
Dana  v.  Munro,  38  Barb.  N.  Y.  528.     1860. 

§  11.  Premium  notes  taken  by  a  mutual  insurance 
company  upon  policies  already  issued,  and  payable  not  at 


STOCK    NOTES  AND   SUBSCRIPTIONS. 


609 


the  end  of  or  within  twelve  months  from  tlate,  but  in  such 
portions  and  at  such  times  as  the  directors  shall  require, 
are  not  sufficient  to  constitute  a  basis  of  capital  for  the  re- 
newal or  extension  of  the  corporation  under  the  New  York 
statute  of  1849.  The  People  v.  Rensselaer  Ins.  Co.  38 
Barb.  N.  Y.  323.     1862. 

§  12.  In  New  York  an  action  may  be  commenced  on 
a  note  given  to  form  the  capital  stock  of  a  mutual  insur- 
ance company  without  any  actual  request,  or  demand  of 
payment,  at  the  expiration  of  twelve  months,  or  twelve 
months  and  three  days,  from  its  date;  and  the  statute  of 
limitations  will  then  commence  running  on  the  same. 
Sands  v.  St.  John,  36  Barb.  N.  Y.  628.     1862. 

§  13.  A  premium  note  was  executed  by  a  policy 
holder  vO  a  mutual  insurance  company,  promising  to  pay 
the  sum  therein  named,  "  in  such  portions  and  at  such  time 
or  times  as  the  directors  of  said  company  may,  agreeably 
to  their  charter  and  by-laws,  require."  By  the  charter,  the 
premium  notes  and  cash  premiums  com[)osed  the  capital 
stock,  and  this  capital  was  declared  liable  for  losses  and 
expenses.  Held.,  that  the  company  could  not  recover  on 
the  notes  for  an  assessment  made  thereon,  ^vithout  alleg- 
ing and  proving  that  losses  and  expenses  had  actually  oc- 
curred. American  Ins.  Co.  v.  Schmidt,  19  Iowa,  502. 
1865. 

§  14.  A  note  given  an  insurance  company  organized 
under  the  general  act  of  1849  of  New  York,  and  forming 
a  part  of  the  original  capital  of  said  company,  is  payable 
absolutely  without  alleging  or  proving  any  loss  or  assess- 
ment by  the  company.  Tuckerman  v.  Brown,  33  N.  Y. 
297.     1865. 

§  15.  On  a  motion  to  enforce  against  a  stockholder 
a  judgment  obtained  against  the  company,  the  judgment  is 
sufficient  j!)rm« /<«?«'«  evidence  of  the  corporate  existence  of 
the  company,  and  to  take  advantage  of  irregularities  in 
the  organization  of  the  company,  th-  y  must  be  specifically 
pointed  out  by  the  stockholder.  Schseffer  v.  Missouri 
Home  Ins.  Co.  46  Mo.  248.     1870. 

§  16.    The  subscription  for  so  many  shares  of  stock 

39 


610 


STORING    OR    KEEPING. 


constituted  the  subscriber  a  member  of  the  company,  though 
he  never  met  calls  thereon,  and  certificates  of  stock  were 
never  issued.  Responsibility  as  stockholder  cannot  be 
evaded  by  mere  notice  to  the  officers  that  the  suV)scriberwill 
not  take  stock  in  accordance  with  his  sultscription  contract. 
Schreffer  v.  Missouri  Home  Ins.  Co.  46  Mo.  248.     1870. 

§  17.  An  agreement  between  the  president  and  a 
stockholder  that  tiie  latter  should  not  be  liable  on  his 
stock  note  cannot  affect  creditors.  Peychaud  v.  Hood,  23 
La.  An.  732.     1871. 

Bee  Premium  Notes  in  Advance.      Also,  As-ie^sment,  §  41,  50,  61.    Mutual 
Companies  and  Members  of,  5,  37.     Premium  Notes,  43. 


STORING  OR  KEEPING. 

§  1.  Policy  on  buildini;  ''  where  no  fire  is  k('i)t,  and 
no  hazardous  goods  deposited."  A  tar  ])arrel  (which  was 
"hazardous,")  was  inti'oduced,  and  from  it,  the  building 
caught  fire.  Ilehl^  that  the  sti])ulations  referred  to  the 
halntual  use  of  fire,  and  the  ordinary  denosit  of  goods, 
not  to  the  occasional  introduction  of  ei^'  Dobson  v. 

Sothe])y,  1  Moody  tt  M.  IMi.     (22  E.  C.  1         \.)     1827. 

§  2.  The  keeping  of  boards  and  other  timber,  in  a 
building  insured,  will  not  avoid  the  ])olicy,  if  they  are  not 
among  the  arti«.*les  ]>rohibited  from  being  kept  \\\)<m  the 
])remises,  in  the  classes  ol*  liazaids.  L(ninsbury  v.  Pro- 
tection Ins.  Co.  8  Conn.  4r)l>.     ISol. 

§  3.  Where  ])()rH'y  i)rohil)ited  an  appro])riation  of  the 
building  for  the  ])urj)ose  of  "storing"  certain  enumerated 
articles,  among  which  were  "oils  and  spirituous  liquors;" 
llehl,  that  the  kee])ing  of  those  articles  in  the  cellar  in 
casks,  etc.,  to  rej)lenish  the  smaller  vessels  in  the  store  for 
the  purposes  of  retailing,  was  not  "storing;"  that  the 
"storing"  meant  in  the  condition  was  a  keeping  for  safe 
custody,  to  be  delivered  out  in  the  same  condition,  sub- 
stantially the  same  as  when  received ;  and  applied  only 
where  storing  or  safe  keeping  was  the  principal  olyect  of 


STORING    OR     KEEPING. 


♦511 


,  though 
3k  were 
iinot  be 
iber  will 
jontract. 
1870. 

t  and  a 
J  on  his 
lood,  23 

1.    Mutual 


vopt,  and 
hieli  was 
building 
d  to  the 
■>f  goods, 
obson  V. 
1827. 

>ei',  in  a 
y  are  not 
upon  the 
V.  Pro- 
ion  of  the 
unierated 
liquors;" 
cellar  in 
store  for 
that  the 
r  for  safe 
ion,  sub- 
lied  only 
object  of 


m 


■/, . 


the  deposit,  and  not  where  it  was  merely  i^i  idental. 
New  York  Equitable  Ins.  Co.  v.  Langdon,  0  W  end.  N.  Y. 
623.     1831.     Affirming  1  Hall,  N.  Y.  226.     1828. 

§  4.  Policy  provided  "  that,  if  the  building  shouM  be 
appropriated,  applied,  or  used  to  or  for  the  j)urpose  of 
keeping  or  storing  therein  extra  hazardous  articles,  then, 
and  so  long  as  the  building  should  be  so  used,  the  policy 
should  cease  and  be  of  no  further  effect."  During  exist- 
ence of  the  policy,  this  clause  had  been  violated  by  stor- 
ing and  using  the  building  otherwise  than  permitted,  but 
it  was  not  so  used  at  time  of  the  fire.  Held,  that  the  policy 
was  good.  Lounsbury  v.  Protection  Ins.  Co.  8  Conn.  459. 
1831. 


§ 


a. 


^  The  keepinj?  of  "liquors"  in  a  boarding-house 
for  sale  to  boarders,  ^oes  not  avoid  the  policy,  under  the 
condition  prohibiting  the  "  storing  therein  of  extra-hazard- 
ous articles,"  among  which  are  included  "  spirituous 
liquors."  Rafferty  v.  New  Brunswick  Fire  Ins.  Co.  3  Har- 
rison, N.  J.  480.     1842. 

§  6.  A  policy  on  stock  of  *'  dry  goods,"  with  "  cotton 
in  bales"  enumeratt d  in  the  class  of  extra  hazardous  arti- 
cles, will  not  be  vitiated  by  the  fact  that  part  of  the  stock 
consists  of  ''cotton  in  bales,"  unless  the  jury  should  find 
that  the  risk  was  thereby  increased.  Moore  v.  Protection 
Ins.  Co.  29  Me.  97.     1848. 

§  7.  Policy  on  stock  of  merchandise  contained  the 
usual  clause  against  an  appropriation  or  use  of  the  build- 
ing for  the  purpose  of  storing  or  keeping  therein  any  of 
the  articles  enumerated  in  classes  of  hazards.  The  assured 
kept  some  hazardous  articles,  required  by  the  ordinary 
course  of  his  trade.  Held,  that  it  did  not  violate  the  poli- 
cy, as  the  above  provision  was  intended  merely  as  a  pro- 
tection against  the  appropriation  of  the  l)uilding  for  the 
business  of  storing  and  keeping  such  articles.  Moore  v. 
Protection  Ins.  Co.  29  Me.  97.     1848. 

§  8.  Policy  contained  the  usual  clause  against  an  ap- 
propriation or  use  of  the  premises  for  the  purpose  of  car- 
rying on  therein  any  trade,  &q.,  oy  for  the  purpose  of  keep- 
ing or  storing  therein  any  of  the  articles  enutnerated  in 


612 


STORING    OR    KEEPING. 


the  classes  of  hazards,  &c.  Among  the  trades  and  articlesr 
included  in  classes  of  hazards,  were  those  of  "houses 
building  or  repairing,"  and  "oil,  turpentine  and  paint.'* 
At  the  time  of  the  fire  the  house  was  being  repaired  and 
painted;  and  "oil,  turpentine  and  paint  were  in  the 
building  for  that  purpose.  Ifeld,  that  the  repairing  of  the 
house  insured,  and  the  deposit  of  the  oil,  turpentine  and 
paint  for  that  purpose,  were  not  the  trade  of  "  houses  re- 
pairing," or  "  stonng  "  of  the  articles,  within  the  meaning 
of  the  condition,  O'Neill  v.  Buffalo  Fire  Ins.  Co.  3  Comst. 
N.  Y.  122.     1849. 

§  9.  Policy  was  on  "  stock  in  trade,  consisting  of 
merchandise  not  hazardous."  Among  the  classes  of  extra 
hazards  were  enumerated  "  oil,  tallow  and  glass ; "  and,  it 
appearing  that  these  articles  were  kept  with  the  stock  in- 
sured, the  policy  was  held  to  be  void.  Richards  v.  Pro- 
tection Ins.  Co. '30  Me.  273.     1849. 

§  10.  Building  had  been  used  for  dressing  flax ;  it, 
before  fire  and  before  insurance,  the  machineiy  had  been 
removed  and  building  made  to  conform  to  application  and 
description  in  the  policy ;  but  some  unbroken  flax  in  bulk 
was  left  in  one  corner  of  the  room,  and  was  there  at  time 
of  the  fire.  One  of  the  conditions  was  "  that  if  the  build- 
ings should  be  appropriated,  applied  or  used,  to  or  for  the 
purpose  of  keeping  or  storing  therein  any  of  the  articles 
denominated  hazardous,  extra  hazardous,  or  enumerated  in 
the  memorandum  of  special  hazards,"  cfec,  the  policy  should 
be  void ;  and  among  such  articles,  denominated  hazardous,, 
"  flax  "  was  included.  The  court  instructed  the  jury,  "  that 
if  they  were  satisfied  from  the  evidence  that  the  building 
was  appropriated,  applied  or  used  for  the  pui'pose  of  keep- 
ing or  storing  flax,  the  policy  was  void.  But  if  the  build- 
ing was  not  devoted  to,  or  used  for,  that  purpose,  and  the 
small  pile  of  flax  was  there  but  temporarily,  and  with  no 
intention  of  having  it  regularly  stored  or  kept  there,  then 
the  policy  would  not  be  avoided."  Hynds  v.  Schenectady 
County  Mut.  Ins.  Co.  16  Barb.  N.  Y.  1 1 9.  1852.  AflSnned, 
1  Kern.  N.  Y.  554.     1854. 

§  11.  Policy  covered  "stock  of  goods  and  merchan- 
dise," and  stipulated  "  that  ifthe  premises  be  appropriated, 


1 


STORING    OR    KEEPING. 


613 


applied  or  used  for  the  purpose  of  storing  or  keeping 
therein  any  of  the  articles  enumerated  in  the  classes  of 
hazards  without  consent,  then  and  so  long  as  they  shall 
be  so  appropriated,  applied  or  used,  this  policy  shall  cease 
and  be  of  no  force  or  effect."  Among  the  articles  thus 
referred  to,  "  oil  and  cotton"  were  included.  The  assured 
had  kept  for  a  short  time,  in  the  back  part  of  the  store,  a 
barvel  of  oil,  with  bunches  of  cotton  near  it.  Held,  that 
the  clause  by  its  terms  was  confined  to  the  case  of  a 
building  insured ;  and,  in  reference  to  that,  forbid  the  ap- 
propriation or  chief  use  of  the  building  for  any  of  the  for- 
bidden purposes ;  and  not  the  incidental  keeping  of  small 
quantities  of  the  forbidden  articles,  for  retail,  along  with 
a  general  stock  of  g-^ods.  Leggett  v.  -/Etna  Ins.  Co.  10 
Kich.  Law,  S.  C.  202.     1856. 

§  1 2.  Policy  of  insurance  was  on  a  stock  in  trade, 
described  in  the  application  (which  was  made  part  of  the 
policy  and  warranty  on  the  part  of  assured)  as  consisting 
of  "dry  goods,  groceries,  hardware,  crockery,  glass,  and 
wooden  ware,  britannia  and  tin  ware,  stoves  of  various 
kinds,  and  various  other  wares  and  merchandise."  The 
conditions  were  also  annexed  and  referred  to  as  forming 
part  of  the  policy,  and  "  were  to  be  used  and  resorted  to, 
m  order  to  explain  the  rights  and  obligations  of  the  par- 
ties in  all  cases  not  herein  specially  provided  for."  One  of 
the  conditions  was,  "  that  if  the  premises  be  used  for  the 
purpose  of  storing  or  keeping  therein  any  of  the  articles 
denominated  hazardous,  extra  hazardous,  ifec,  the  policy 
shall  be  void."  Among  the  articles  thus  referred  to  were 
several  mentioned  ili  assured's  application,  and  also  "  gro- 
ceries with  any  hazardous  articles,  rags,  <fec."  It  appeared 
that  "  rags  "  had  been  kept  as  part  of  the  stock  in  trade ; 
and  that  it  was  usual  for  shopkeepers,  having  a  general 
stock  liki  that  insured,  to  keep  " rags "  in  the  same  man- 
ner. Held,  that  the  keeping  of  them  avoided  the  policy, 
under  the  above  conditions ;  and  also  held,  that  the  effect 
of  evidence  to  prove  such  an  usage  in  country  stores  was 
to  control  the  written  agreement  of  the  parties,  and  was 
therefore  incompetent.  Macomber  v.  Howard  Fire  Ins. 
Co.  7  Gray,  Mass.  257.     1856. 

§  13.    Policy  provided  "  that  if  the  building  should  be 


614 


STORING    OR    KEEPING. 


appropriated,  applied  or  used,  to  or  for  the  purpose  of 
keeping  or  storing  therein  any  of  the  articles  enumerated 
in  the  classes  of  hazards,  then  and  thenceforth  the  policy 
should  cease,  and  be  of  no  force  or  effect."  Among  the 
classes  of  hazards  referred  to,  "  spirituous  liquors  "  were 
enumerated,  and  it  appeared  that  a  quantity  of  liquors  had 
been  put  in  one  room  of  the  building,  and  kept  there  for 
two  months  before  the  fire,  and  were  there  at  time  of  fire 
for  the  purpose  of  safe  keeping,  and  selling  by  the  package 
when  opportunity  offered.  Held^  that  if  from  the  evi- 
dence the  jury  believed  that  the  building  had  been  appro- 
priated, applied  or  used,  to  or  for  the  purpose  of  stoiing 
or  keeping  liquors  therein,  then  the  plaintiff  could  not  re- 
cover; but  if  they  found  it  was  not  so  a])propriated, 
applied  or  used,  then  they  must  find  for  the  plaintiff. 
Longhurst  v.  Conway  Fire  Ins.  Co.,  U.  S.  D.  Ct.  Northern 
Division,  Iowa,  October  Term,  18C1. 

§  14.  The  policy  contained  a  stipulation  against  keep- 
ing on  the  premises  any  "  hazardous "  or  "  extra  hazard- 
ous" articles,  on  penalty  of  foifeiture  of  the  insurance. 
Oil,  sulphur  and  matches,  were  mentioned  as  "  hazardous  " 
and  "extra  hazardous"  articles,  and  were  kept  on  the 
premises.  //e/</,  that  the  policy  was  made  void ;  and  that 
the  fact  that  the  property  was  insured  "as  a  provision 
and  gi'oceiy  store  "  did  not  authorize  the  keeping  of  the 
excepted  articles  as  part  of  the  stock  appertaining  to  such 
business.  Whitemarsh  v.  Charter  Oak  Fire  Ins.  Co.  2 
Allen,  Mass.  581.     1801. 

§  15.  A  policy  of  insurance  on  the  machineiy  in  a 
silk  factory,  wliich  provides  that  it  shall  be  of  no  eft'ect 
while  the  premises  shall  Ije  used  for  storing  "  cotton  in 
bales,"  "  rags,"  or  "  wool,"  or  for  a  "  cotton  mill,"  "  woolen 
mill,"  or  f)ther  "  manufacturing  establishment  or  trade  re- 
quiring the  use  of  heat,"  is  not  avoided  by  using  one  room 
for  weaving  a  few  pieces  of  stuff  fi'om  woolen  and  linen 
thread  and  cotton,  sjnin  elsewhere  and  kept  in  the  room. 
Vogel  V.  People's  Mut.  Fire  Ins.  Co.  9  Gray,  Mass.  2.'i. 
1857. 

§  16.  The  written  portion  of  a  policy  of  insurance  de- 
scribed the  property  insured  as  follows :  "On  a  stock  of  goods 


STORING    OR    KEEPING. 


615 


in  a 
effect 

ton  in 
oolen 

ade  re- 

e  room 
linen 
room. 

iss.  2 a. 


consisting  of  a  general  assortment  of  dry  goods,  groceries, 
crockery,  boots  and  shoes,  and  such  goods  as  are  usually 
kept  in  a  general  retail  store."     The  policy  also  contained 
printed  conditions  of  insurance,  and  it  was  thereby  stipu- 
lated that  if  the  premises  should  be  used  for  the  purpose  of 
storing  therein  any  of  the  goods,  <fec.,  denominated  "  haz- 
ardous," "  extra  fiazardous,    or  included  in  the  memoran- 
dum of  "  special  hazards,"  except  in  the  policy  specially 
provided  for,  or  afterwards  agreed  to  by  the  company  in 
V'riting,  the  policy  should  be  void.     The  policy  also  gave 
printed  classes  of  hazards,  arranged  under  the  heads  of 
"not   hazardous,"   "hazardous,"  "extra   hazardous,"   and 
"  memorandums  of  special  hazards,"  among  which  latter 
was  the  following :     "  Gunpowder,  phosphorus  and  salt- 
petre, are  expressly  prohibited  from  being  deposited,  stored 
or  kept  in  any  building  insured,  or  containing  any  goods, 
ifec,  insured  by  this  policy,  unless  by  special  consent  in 
writing  on  the  policy."  In  an  action  upon  the  policy  it  was 
proved  that  at  the  time  of  effecting  the  insurance,  the  in- 
sured had  among  his  goods,  and  kept  in  his  store  for  sale  a 
small  amount  of  gunpowder,  about  twenty  pounds,  and 
that  gunpowder  is  an  article  that  is  ordinarily  and  usually 
ke^t  in  a  general  retail  store,  in  quantities  varying  from 
ten  to  fifty  pounds.     Held.,  that  keeping  an  article  in  a 
store  for  retail  pui-poses  is  not  storing  such  article,  with- 
in the  meaning  of  the  words  of  the  policy ;  that  the  writ- 
ten portion  6f  the  policy  should  CDutrol  the  printed  stip- 
ulations and  conditions,  when  there  is  any  want  of  har- 
mony between   them.      That  the  written  words  in  this 
policy  are  broad  enough  to  include  any  articles  that  are 
usually  dealt  in  by  persons  keeping  a  general  retail  store, 
and  all  such  articles  are  included  in  the  polity,  as  if  each 
was  enumerated  at  length ;  and  that  the  pol  y  was  bind- 
ing.    Phcenix  Ins.  Co.  v.  Taylor,  5  Minn.  492.     18G1. 

§  17.  If  by  the  terras  of  a  policy  of  insurance,  the 
keeping  or  storing  of  certain  articles  in  the  insured  prem- 
ises is  prohibited  during  its  continuance,  and  the  policy 
only  suspended  while  they  are  so  kejit,  the  policy  is  not 
rendered  void  because  such  articles  were,  at  times,  kept  in 
the  insured  premises.  Phcenix  Ins.  Co.  v.  Lawrence,  4 
Mete.  Ky.  9.     1862. 


616 


STORING    OR    KEEPING. 


I' 


§  18.  The  keeping  of  articles  to  be  exhibited  or  to 
be  used  as  means  and  instruments  of  a  public  exhibition, 
is  not  a  use  of  the  building  "  for  the  pui'pose  of  storing 
or  keeping  therein  "  such  articles,  within  a  clause  in  the 
policy  relating  to  hazardous  articles.  Mayor,  &c.  of  New 
York  V.  Hamilton  Ins.  Co.  10  Eosw.  N.  Y.  537.     1863. 

§  1 9.  Where  a  policy  of  insurance  on  a  patent  leather 
manufactory  allowed  keeping  benzole  in  no  place  but  in 
a  shed  detached  from  the  building,  the  fact  that  the  in- 
sured, in  conducting  their  business,  used  benzole  and  car- 
ried it  as  needed  into  the  factory,  in  an  open  can,  is  not  a 
breach  of  the  conditions  of  the  insurance.  Benzole  be- 
ing ordinarily  used  in  such  manufactory,  the  presumption 
is  that  it  was  intended  that  it  might  be  used  as  it  is  ordi- 
narily in  similar  factories.  Citizens'  Ins.  Co.  v.  McLaugh- 
lin, 53  Penn.  St.  485.     1866. 

§  20.  A  policy  on  store  and  dwelling-house  was  to  be 
void  if  "  the  premises  shall  at  any  time  be  appropriated, 
applied  or  used  for  carrying  on  ^'  any  trade  denominated 
hazardous  (under  which  was  included  sail-makers),  or 
extra  hazardous  (under  which  was  confectionery  and  con- 
fectionery manufacturers),  without  consent.  A  mortgagee 
of  the  assured  was  in  possession  to  foreclose,  and  had  put 
tenants  in  the  dwelling,  one  of  whom,  a  barber,  kept  also 
about  $15  worth  of  confectionery  in  jars  on  his  counters 
and  shelves  for  sale.  The  store  A\as  let  by  the  mortgagee 
to  another,  who  had  sublet  part  for  a  sail-loft  wherein  sail- 
makers'  stock  and  tools  were  put,  with  the  expectation  of 
commencing  work  the  day  after  the  fire,  but  work  had  not 
commenced  yet.  The  fire  took  in  another  part  of  the 
store  and  injured  the  dwelling  also.  IlelJ,  the  occupation 
was  contraiy  to  the  policy,  and  avoided  it.  Wetherell  v. 
City  Fire  Ins.  Co.  10  Gray,  276.     1860. 

§  21.  Policy  on  "  stock  of  fire-Avorks — hazardous  and 
extra  hazardous."  A  j)riuted  provision  avoided  the  policy 
in  case  of  keeping  any  article  in  quantities  greater,  or  in 
a  manner  different,  from  what  the  law  allows,  unless  spe- 
cially provided  for  in  this  policy.  Assured  kept  certain 
"  colored  lights  "  contraiy  to  the  provisions  of  a  city  ordi- 
nance. Held,  the  policy  was  avoided :  the  rule  that  the 
written  portion  of  the  policy  should  prevail  over  the  printed 


STOEING    OR    KEEPING. 


617 


not  applying  here,  as  there  was  no  repugnance  between 
them.    Jones  v.  Firemen's  Fund  Ins.  Co.  2  Daly,  307.    1868. 

§  22.  A  policy  prohibiting  the  keeping  of  any  arti- 
cles denominated  hazardous,  <fcc.,  except  as  agreed  upon, 
was  endorsed  "  permission  given  to  keep  one  barrel  of 
benzine  in  tin  cans."  The  benzine  was  always  brought  in 
a  barrel  and  transferred  by  a  syphon  into  a  single  can. 
During  this  transfer  an  explosion  took  place.  Held^  the 
endorsement  is  a  pei'miaaion^  not  a  warranty,  and  as  such 
is  to  be  substantially  complied  with,  with  reasonable 
reference  towards  enjoying  its  benefits;  therefore,  using 
one  tin  can,  being  as  safe  or  safer  than  several,  is  a  sub- 
stantial compliance.  Procuring  benzine  in  the  usual  way, 
viz.,  by  the  barrel,  is  a  substantial  compliance ;  and  intro- 
ducing it  in  a  barrel  and  then  transferring  it,  is  allowable 
by  every  fair  intendment,  and  is  not  a  keeping  it  therein. 
Maryland  Fire  Ins.  Co.  v.  Whiteford,  31  Md.  219.     1869. 

§  23.  Clause  of  avoidance,  if  gunpowder,  saltpetre, 
*  *  *  are  kept  on  the  premises,  or  if  camphene,  burn- 
ing fluid,  *  *  *  are  kept  for  sale  or  used  on  the 
premises,  in  quantities  exceeding  one  barrel.  Held,  that 
as  gunpowder  is  classed  with  saltpetre,  which  is  compara- 
tively harmless ;  whereas  camphene  and  burning  fluid  are 
quite  dangerous,  the  more  reasonable  constniction  of  the 
punctuation  is,  that  the  limit  of  "  quantities  exceeding  a 
barrel "  applies  to  the  whole  clause,  and  a  less  quantity  of 
gunpowder  kept  will  not  defeat  the  policy.  Insurance 
Co.  V.  Slaughter,  12  Wallace,  404.     1870. 

§  24.  Clause  requiring  permission  for  the  use  of 
"  camphene  and  other  inflammable  fluid  as  a  light,"  kero- 
sene was  used ;  Held,  that  inflammable  in  that  connection 
meant  explosive,  and  not  combustible  only ;  that  as  the 
legislature  had  declared  certain  grades  of  kerosene  safe  to 
use,  the  court  could  not  take  judicial  notice,  as  of  a  notorious 
fact,  that  kerosene  of  every  grade  was  always  explosive, 
and  the  defendants  must  show  that  the  kerosene  used  was, 
in  fact,  inflammable,  i.  <?.,  explosive.  Wood  v.  North  West- 
ern Ins.  Co.  (1  Sickles),  46  N.  Y.  421.     1871. 

See  Gunpowder.    Camphene.    Also,  Agent,  §  74.    Risk,  26,  37,  30, 40,  40, 
47,  49,  52,  68,  54.    Use  and  Occupation,  4. 


! 


! 


SUBROGATION. 

§  1.  Policy  on  house,  which  was  destroyed  by  rioters. 
The  insurance  office  paid  the  loss,  and  an  action  was 
brought,  in  the  name  of  insured,  for  the  benefit  of  the  in- 
surance office,  against  the  hundred  for  damages.  Action 
sustained.  Mason  v.  Sainsbury,  3  Doug.  61.  (26  E.  C. 
L.  167.)     1782. 

§  2.  In  a  like  case,  where  the  action  was  brought  by 
the  insurance  office  in  its  own  name,  judgment  was  by  a 
divided  court  for  defendant.  London  Assurance  Co.  v. 
Sainsbury,  3  Doug.  245.  (26  E.  C.  L.  167.)  1763.  This 
judgment  was  unanimously  affirmed  in  Court  of  Exchequer 
Chamber.  See  memorandum  at  the  end  of  the  above 
case. 

§  3.  Policy  on  1,027  bales  of  cotton,  "  for  whom  it 
may  concern,"  stored  in  New  Orleans,  provided  that  "  a 
prior  insurance,  not  notified  and  expressed  in  the  policy, 
should  render  it  void."  Before  the  taking  out  of  this  pol- 
icy, 333  bales  of  the  same  cotton  had  been  insured  for 
£2,000,  by  the  Alliance  Marine  Insurance  Company  in 
London,  and  upon  due  notice  and  proof  of  loss,  the  latter 
paid  up  the  amount  of  its  policy,  and  brought  suit  against 
defendant  to  recover  the  amount  thus  paid,  lleld^  that 
the  owners  of  the  333  bales  could  not  have  recovered  from 
the  defendant  more  than  the  amount  of  loss  not  covered 
by  the  assurers  in  London,  because  of  the  non-compliance 
with  the  above  condition;  and  that  the  plaintiffs  could 
not  therefore  justly  claim  to  be  subrogated  to  rights  and 
claims  which  the  owners  themselves  nad  not  acquired. 
Alliance  Marine  Assurance  Co.  v.  Louisiana  State  Ins.  Co. 
8  La.  1.     1835. 

§  4.  If,  after  insurance,  the  insured  sell  the  property 
to  another  party,  he  can  only  recover  to  the  amount  of  the 
purchase  money  unpaid  at  the  time  of  the  fire,  and  upon 
payment  of  his  claim  by  i;he  underwriters,  the  latter  will 
be  entitled  to  all  the  securities  held  by  the  assured,  as 
against  the  vendee.  -<Etna  Fire  Ins.  Co.  v.  Tyler,  16 
Wend.  N.  Y.  385.     1836. 


! 


SUBROGATION. 


619 


§  5.  Where  msured  mortgaged  the  insured  premises, 
and  assigned  the  policy  with  the  consent  of  the  company 
to  the  mortgagee,  and  then  sold  the  insured  property  to  a 
third  party,  subject  to  the  mortgage,  and  the  property 
was  afterwards  destroyed ;  Held^  that  mortgagor  had  been 
divested  of  all  interest,  and  mortgagee  could  not  recover 
without  assigning  to  the  insurance  company  an  interest  in 
the  mortgage  equal  to  the  amount  to  be  paid  by  them. 
Kip  V.  Keceivers  of  Mutual  Fire  Ins.  Co.  4  Edw.  Ch.  N. 
Y.  86.     1842. 

§  6.  An  insurance  company  having  paid  a  loss  on  a 
dwelling-house,  caused  by  sparks  from  a  locomotive,  and 
for  which  loss  the  railroad  company  was  liable;  Held^ 
that  assured  might  in  the  first  place  apply  to  either  the 
railroad  company  or  the  insurance  company ;  that  if  he 
first  applied  to  the  railroad  company,  this  clain  on  the 
insurance  company  would  be  diminished  by  the  amount 
received  from  the  former ;  that  if  he  first  obtained  indem- 
nity for  his  loss  from  the  insurance  company,  the  latter 
was  subrogated  to  his  rights  as  against  the  railroad  com- 
pany, and  might  bring  an  action  at  law  in  his  name 
against  it,  and  he  could  not,  by  the  execution  of  any  re- 
lease, discharge  the  railroad  company  from  their  liability. 
Hart  V.  Western  R  R.  13  Met.  Mass.  99.     1847. 

§  7.  A  mortgagee,  who  gets  an  insurance  for  himself, 
when  the  insurance  is  upon  the  property  generally,  with- 
out limiting  it  in  terms  to  his  interest  as  mortgagee,  but 
when,  in  point  of  fact,  his  only  insurable  interest  is  that 
of  a  mortgagee,  in  case  of  loss  1  )y  fire  before  the  payment 
of  the  debt  and  discharge  of  the  mortgage,  has  a  right  to 
recover  the  iamount  of  the  loss  for  his  own  use,  and  with- 
out assigning  the  debt  to  the  insurers.  King  v.  State 
Mut.  Fire  Ins.  Co.  7  Cush.  Mass.  1.     1851. 

§  8.  Policy  on  a  church,  which  took  fire  from  sparks 
from  a  steamboat  having  no  grille  on  the  chimney.  The 
company  paid  the  loss  and  took  from  the  cur6  and  one  of 
the  Marguilliers  en  charge  a  transfer  of  the  claim  against 
the  owners  of  the  boat,  and  brought  an  action  against  the 
owners  in  their  own  name.  Held,  1st,  that  the  proper 
ofiicers  of  the  church  had  cause  of  action  against  the  own- 


ii 


620 


SUBROGATION. 


€rs  of  the  boat ;  2d,  tliat  though  there  was  no  legal  assign- 
ment of  the  claim,  this  was  a  valid  act  of  subrogation, 
and  the  company  might  bring  the  action.  Quebec  Fire 
Assurance  Co.  v.  St.  Louis,  7  Moore,  P.  C.  286.  1851. 
Same  v.  Same,  1  Lower  Canada,  222. 

§  9.  Where  property  insured  has  been  maliciously 
and  wilftilly  burnt  by  a  third  person ;  no  action  can  be 
sustained  by  the  insurance  company,  which  had  paid  the 
loss  against  such  third  person,  in  its  own  name ;  and  the 
statute  inflicting  against  the  incendiary  a  penalty  of  three 
times  the  loss  in  favor  of  the  party  injured,  will  not  give 
such  right  of  action.  Rockingham  Mut.  Fii*e  Ins.  Co.  v. 
Bosher,  39  Me.  253.     1855. 

§  10.  When  a  party,  holding  a  lien  upon  real  estate 
to  secure  a  debt,  eflfects  an  insurance  upon  such  property 
to  secure  the  debt ;  in  case  of  a  loss  the  insurance  company, 
on  paying  the  insurance,  will  be  entitled  to  the  benefit 
of  the  security  held,  to  the  amount  they  h  ive  paid ; 
and  if  they  pay  the  insured  the  whole  amount  o  ■  his  claim 
for  which  he  holds  such  security,  they  will  have  a  right  to 
the  whole  of  the  security  held  by  him.  If  the  insured 
holds  other  securities  for  the  same  debt,  on  paying  to  him 
his  whole  claim,  the  insurer  will  be  entitled  to  all  the 
securities.  Sussex  County  Mut.  Ins.  Co.  v.  Wooki'uff,  2 
Dutch.  N.  J.  541.     1856. 

§  11.  A  mortgagee  of  premises  insured,  foreclosed  and 
became  the  absolute  owner.  He  then  agreed  to  sell  to  a 
third  party  and  keep  tlie  premises  insured,  upon  agree- 
ment of  vendee  to  pay  him  the  premiums  which  he  mi^ht 
pay  for  continuing  the  insurance.  The  insurers  had  notice 
of  all  these  facts,  and  consented  that  the  policy  should  re- 
main good  to  the  vendor  until  the  title  was  perfected  in 
the  vendee.  HeM,  that  on  paying  a  loss  to  the  vendor, 
happening  subsequently,  and  before  title  had  been  perfected 
in  the  vendee,  the  assurers  were  not  entitled  to  be  subro- 
gated to  the  claim  of  assured  against  his  vendee.  Assured 
IS  entitled  to  recover  to  the  amount  of  the  policy,  and  the 
indemnity  enures  to  the  benefit  of  his  vendee  as  well  as 
himself.  Benjamin  v.  Saratoga  County  Mut.  Ins.  Co.  17 
N.  Y.  415.     1858. 


SUBROGATION. 


621 


assign- 

jgation, 

Dec  Fire 

1851. 

iciously 
can  be 
)aid  the 
and  the 
of  three 
lot  give 
3.  Co.  V. 

i\  estate 
)roperty 
Dmpany, 
I  benefit 
e  paid ; 
lis  claim 
right  to 
[  insured 
r  to  him 
)  all  the 
akruflF,  2 

>9ed  and 

3ell  to  a 

n  affree- 

le  mi^ht 

d  notice 

lould  re- 

ected  in 

vendor, 

>erfected 

subro- 

Assured 

and  the 

well  as 

.  Co.  17 


§  12.  Where  agreement  is  made  between  mortgagee 
and  mortgagor,  that  premises  shall  be  insured  in  name  of 
the  mortgagee,  but  mortgagor  to  pay  the  premiums,  and  a 
policy  is  taken  out  in  the  name  of  the  mortgagee  accord- 
ingly ;  the  insurance  company  are  not  entitled  to  subroga- 
tion, although  the  assurers  were  not  infomied,  at  the  time  I 
of  insurance,  of  any  such  agreement,  and  the  policy  was  to' 
plaintiff  "  as  mortgagee ; "  and  such  agreement  may  be  by 
parol.  Kernochan  v.  New  York  Bowery  Fire  Ins.  Co.  17 
N.  Y.  428.  1858.  See  also,  Bradford  v.  Greenwich  Ins.  Co. 
8  Abb.  N.  Y.  261.     1859. 

§  13.  If  the  interest  of  a  mortgagee  in  possession  has 
been  insured  eo  nomine^  at  his  own  expense,  the  insurers, 
in  case  of  a  loss  by  fire  before  the  mortgage  debt  is  paid, 
cannot,  upon  an  offer  to  pay  the  loss  and  the  amount  due 
on  the  mortgage  above  the  loss,  maintain  a  bill  in  equity 
to  have  the  mortgage  assigned  to  them,  and  to  be  subro- 
gated to  the  rights  and  remedies  of  the  insured  under  the 
mortgage.  Suffolk  Fire  Ins.  Co.  v.  Boy  den,  9  Allen,  Mass. 
I  123.     1864. 

§  14.     Where  insured  property  has  been  burned  by 
li  the  carelessness  of  a  railway  company,  and  the  insurance 

■'%  company  has  paid  the  loss,  it  cannot  maintain  an  action  in 

its  own  name  against  the  railway  company.  The  suit 
must  be  brought  in  the  name  of  the  owner  of  the  property 
for  the  use  of  the  insurer.  The  different  rule  applied  in 
cases  of  marine  insurance  rests  upon  the  doctrine  of 
abandonment,  and  subrogation  of  the  insurer  to  the  rights 
and  title  of  the  insured ;  a  doctrine  which  has  no  existence 
in  cases  of  fire  insurance.  Peoria  Marine  «fe  Fire  Ins.  Co. 
V.  Frost,  37  111.  333.     1865. 

§  15.  A  party  procured  insurance  on  whisky,  held 
by  him  as  collateral  security  for  a  note.  A  loss  having 
occurred  and  been  paid,  the  company  took  an  assignment 
of  the  note  and  proceeded  against  the  maker.  HeM^  no 
discharge  of  the  debt,  and  they  were  entitled  to  be  thus 
subrogated  (disapproving,  King  v.  State  Mut.  Fire  Ins. 
Co.  7  Cushing,  10).  Semhle^  that  had  the  insurance  been 
effected  at  the  request  of  the  maker  of  the  note,  or  at  his 
expense,  or  he  been  chargeable  for  the  premium,  no  doubt 


622 


SUBROGATION. 


;M 


he  would  have  been  entitled  to  its  benefits  by  applying 
the  money  in  extinguishment  of  the  debt.  Honore  v.  Lamar 
Fire  Ins.  Co.  51  III  409.     1800. 

§  16.  Insured  property  being  destroyed  by  the  sparks 
from  a  locomotive,  the  insurance  company  payinff  the  loss 
can  recover  of  the  railroad.  Bean  v.  Atlantic  &  St. 
Lawrence  R  R.  58  Me.  82.     1870. 

§  17.  Assured  having  made  a  contract  of  sale  of  the 
premises  and  part  of  the  price  being  paid,  a  loss  occurred, 
after  "which  tue  assured  executed  a  deed,  and  agreed  to 
collect  and  apply  the  insurance  money  for  the  benefit  of 
the  vendee.  Iiehl,  the  insurance  company  on  payment  of 
the  loss,  is  not  entitled  to  be  subrogated  to  the  rights  of 
the  assured  against  the  vendee,  under  the  contract  of  sale, 
because  it  would  conflict  with  the  indemnity  of  the  as- 
sured for  the  loss,  by  leaving  him  still  liable,  he  having 
insured  not  a  debt  due  to  him,  but  his  means  of  fulfilling 
an  obligation  due  by  him  ;  subrogation  applying  when  a 
debt  due  to  the  assured  is  insured.  Washmgton  Fire  Ins. 
Co.  et  al  V.  Kelly,  32  Md.  421.     1870. 

§  18.  Where  the  loss  is  caused  l>y  a  railroad  company, 
and  the  insurance  company  pays  it,  money  paid  by  the 
railroad  to  the  assured,  as  damages,  is  held  by  him  in  trust 
for  the  insurance  company.  If  the  railroad  does  not  pay 
damages,  or  pays  with  knowledge  that  the  insurance  com- 
pany has  paid,  the  latter  may  recover  of  the  former,  and 
may  use  the  assured's  name  in  bringing  the  suit,  and  a  re- 
lease by  the  assured  to  the  railroad  is  fraudulent.  A 
remedy  against  both  the  railroad  and  the  assured  could 
not  be  pursued  in  one  action,  there  being  no  joint  liability. 
Monmouth  Co.  Fire  Ins.  Co.  v.  Hutchinson  ct  the  Camden 
<fe  Amboy  Railroad,  <3  C.  E.  Green  (21  N.  J.  Chancery 
Rep.)  107.     1870. 

§  19.  Owner  procured  insurance  "  loss  payable  to 
mortgagee."  The  policy  stated  that  any  change  of  title  in 
the  jjroi^erty  insured  should  avoid  the  policy,  protecting 
the  mortgagee,  however,  by  an  exception ;  also  a  provision 
that  if  the  company  pays  the  mortgagee  for  a  loss  for 
which  it  would  not  have  been  liable  to  the  mortgagor,  it 


SUBROGATION. 


623 


should  be  subrogated  to  the  claim  under  the  mortgage. 
Held^  that  this  insurance  for  the  benefit  of  both,  being 
rendered  void  as  to  the  mortgagor  by  bis  sale  of  the  prem- 
ises before  the  fire,  as  he  could  not  have  recovered  on  the 
policies,  he  is  not  entitled  to  have  the  loss  paid  to  the 
mortgagee,  credited  on  the  mortgage,  and  that  the  com- 
pany as  assignee  of  the  mortgage  may  foreclose  it.  The 
policy  is  equally  forfeited  as  to  the  mortgagor,  if  he  had 
sold  his  interest  before  the  date  of  the  policies,  they  de- 
scribing the  premises  as  "his"  stores.  Springfield  F.  «fe 
M.  Ins.  Co.  V.  Allen,  4  Hand.  389.     1871. 

§  20.  Policy  on  factory  and  its  machinery  contained 
a  clause  that  a  claim  against  the  company  by  one  "  hold- 
ing this  policy  as  collateral  security,  shall  not  be  payable 
until "  the  debt  was  enforced,  as  far  as  possible,  against 
the  original  debtor.  The  owner  of  the  premises  con- 
tracted to  sell  them  to  C,  to  execute  the  deed  when  the 
whole  price  was  paid,  C.  to  pay  for  insurance.  Plaintiff 
insured,  C.  paying  the  premium.  After  the  fire,  C.  refused 
further  paying,  and  the  contract  was  canceled.  Held^  j)laint- 
ift*  had  an  insurable  interest  in  his  lien  for  price,  and  as 
he  held  the  legal  title  also,  could  insure  the  property  it- 
self. That  the  insurance  being  really  for  C.'s  benefit,  as 
he  paid  the  premiums,  the  policy  was  not  a  collateral 
security,  and  the  company  had  no  rights  of  subrogation. 
Wood  V.  North  Western  Ins.  Co.  (1  Sickles),  40  N.  Y. 
421.     1871. 

§  21.  The  relation  of  a  common  carrier  to  the  insurers 
of  the  goods  he  carries,  is  not  that  of  double  insurer,  and 
the  insurers,  after  paying  the  loss  by  accidental  burning, 
are  subrogated  to  the  assured's  rights,  and  can  bring  a  suit 
in  his  name  against  the  carrier  without  showing  the  lat- 
ter's  negligence,  it  being  conclusively  presumed.  Hall  <fe 
Long  V.  Railroad  Companies,  13  Wallace,  307.     1871. 

§  22.  When  a  loss,  partially  covered  by  insurance,  is 
occasioned  by  a  wrong-doer,  against  whom  the  insured, 
after  payment  of  the  insurance,  recovers  judgment  for 
such  loss,  and  the  insurer  has  refused  to  contribute  to  the 
prosecution  of  the  action,  the  assured  when  sued  for  re- 
imbursement by  the  underwriter  is  answerable,  if  for 


624 


SUCCESSIVE    LOSSES. 


anything,  for  no  more  than  the  sui-plus  of  the  amount 
recovered  of  the  wrong-doer,  which  may  remain  after  full 
satisfaction  of  his  uncompensated  loss  and  the  expenses  of 
the  recovery.  Newcomb  v.  Cincinnati  Ins.  Co.  22  Oh,  St. 
382.     1872. 

See  Alienation,  §  51,  94.  Damages  beyond  Actual  Loss,  1,  5.  Interest  in 
Policy,  55.    Responsibility  of  Assignee  for  Acts  of  Assignor,  18. 


SUCCESSIVE  LOSSES. 


§  1.  Where  policy  provided  "  that  the  insurers  shall 
not  be  liable  for  more  than  the  sum  insured  in  any  case 
whatever,"  and  there  were  two  distinct  risks  of  $1,000  on 
one  building,  and  $500  on  another,  and  a  loss  of  $142  had 
been  previously  paid  upon  the  first  l)uilding,  which  was 
afterwards  totally  destroyed;  Held,  ihtit  said  $14g  must 
be  deducted  from  the  $1,000,  and  that  the  remainder 
($858)  only  could  be  recovered.  Curry  v.  Commonwealth 
Ins.  Co.  10  Pick.  Mass.  535.     1830. 

§  2.  Where  insured  property  is  destroyed  T)y  fire  to  a 
greater  amount  than  all  the  deposit  notes  and  one  per 
cent,  on  all  the  property  insured,  and  the  whole  amount 
of  the  notes  and  the  one  per  cent,  was  assessed  to  meet  it, 
and  afterwards  another  loss  occurred ;  Held,  that  the  en- 
tire proceeds  of  the  notes  and  the  one  per  cent,  must  be 
applied  toward  the  payment  of  the  first  loss.  Coston  v. 
Alleghany  County  Mut.  Ins.  Co.  1  Penn.  St.  322.     1845. 

§  3.  Where  policy  in  a  mutual  company  stipulated 
that  defendants  "  would  make  eood  all  loss  and  damage 
by  fire  to  the  premises,  during  the  term  of  seven  years,  not 
exceeding  the  amount  insured  ; "  a"d  th  '  ii  case  of  loss 
they  might  "  repair  or  replace  '<^^  a  a  reasonable  term ; " 
and  the  buildings  were  oncf  .  oyed,  and  ebuilt  by  the 
company  at  a  cost  less  than  lount  insureu  by  $550,  and 
were  afterwards  destroyed  again  a^  ithin  the  time  of  in- 
surance, and  without  any  change  ha  v  ing  been  made  either 


TAXATION. 


625 


in  the  policy  or  premium  notes ;  Held^  that  the  company 
were  liable  to  assured  for  the  remaining  difference  of  $550. 
Trull  V.  Roxbury  Mut.  Ins.  Co.  3  Cush.  Mass.  263.     1849. 

§  4.  Where  a  by-law  of  a  mutual  company,  to  which 
policy  was  made  subject,  provided  "  that  the  greatest  sum 
that  could  be  taken  in  any  one  risk  was  $5,000 ; "  and 
another,  that  "  not  more  than  half  the  value  of  the  goods, 
wares  or  merchandise  should  be  insured;"  and  another, 
"that  partial  losses  shall  be  paid  in  full,  not  exceeding 
amount  insured ; "  and  assured  first  lost  $551,  which  was 
paid  and  endorsed  on  the  policy,  and  afterwards  lost 
$1,450  in  another  fire,  and  made  claim  for  the  whole 
amount  ($1,450),  when  policy  was  for  but  $1,500  in  all; 
Heldy  that  the  corporation  was  only  liable  for  the  sum  in- 
sured ;  and  judgment  was  rendered  only  for  difference  be- 
tween first  payment,  $551,  and  the  sum  ($1,500)  insured 
by  the  policy.  Crombie  v.  Portsmouth  Mut.  Ins.  Co.  6 
Fost.  N.  H.  389.     1853. 


TAXATION. 


§  1.  Where  statute  provided  for  the  taxation  of  aU 
corporations  deriving  an  "  income  "  from  the  capital  em- 
ployed ;  Heldy  that  this  could  not  be  restricted  to  "  net  in- 
come," and  that  an  insurance  company,  therefore,  doing 
the  business  of  insurance,  must  pay  a  tax  upon  its  income 
received  from  premiums  and  interest,  although  the  expendi- 
tures of  the  spino  company  were  in  excess  of  such  income. 
Commercial  Ins.  Co.  v.  Supervisors  of  New  York,  18  Wend. 
N.  Y.  605.     1836. 

§  2.  The  annual  profits  of  a  mutual  insurance  com- 
pany, which  are  retained  and  invested  as  a  fund  for  the 
payment  of  its  debts  and  yielding  an  income  to  its  mem- 
bers, are  capital,  within  the  meaning  of  the  Revised  Stat- 
utes of  New  York,  and  upon  which,  as  such,  taxes  may 
be  legally  assessed.    Nor  is  the  act  of  the  legislature,  im- 

40 


626 


TAXATION. 


;|i 


posing  such  tax,  in  conflict  with  the  Constitution  of  the 
tjnited  States.  Sun  Mut.  Ins.  Co.  v.  City  of  New  York, 
5  Sandf  N.  Y.  10.     1851. 

§  3.  Where  charter  forbids  distribution  of  an  accu- 
mulated fund,  earned  from  insurance,  among  stockholders ; 
the  company  is  liable  to  taxation  on  account  of  such  funds, 
within  the  meaning  of  the  statute  in  New  York.  Mu- 
tual Ins.  Co.  V.  Supervisors  of  Erie  Co.  4  Ccmst.  N.  Y. 
442.     1851. 

§  4.  A  tax  laid  upon  agents  of  foreign  insurance  com- 
panies, from  other  States,  doing  business  in  another  State, 
does  not  conflict  with  the  clause  of  the  Federal  Constitu- 
tion, guaranteeing  to  the  citizens  of  each  State  the  privi- 
leges of  citizens  of  the  several  States.  Tatem  v.  Wright,^ 
3Zabr.  N.  J.  429.     1852. 

§  5.  The  charter  of  a  ^nutual  company  provided  for 
the  creation,  out  of  certain  of  the  premiums  and  out  of  the 
net  profits,  of  a  pennanent  fund  to  be  invested  for  the  se- 
curity of  creditors.  Certificates  of  their  respective  interests 
in  this  fund  were  issued  to  the  members.  Held,  that  this 
fund  became  capital  stock,  and  that  the  company  were 
liable  to  be  taxed  on  it  as  such.  Sun  Mut.  Ins.  Co.  v. 
Mayor  of  New  York,  4  Seld.  N.  Y.  241.     1853. 

§  6.  The  14th  and  15th  Vie.  cap.  128,  does  not  con- 
fer on  the  corporation  of  the  city  of  Montreal  power  to 
impose  a  duty  on  the  assents  of  foreign  insurance  companies 
doing  business  in  the  city,  and  consequently  any  by-law  af- 
fecting to  impose  such  duty  is  null  and  void.  Mayor,  <fec. 
V.  Woocn  .*  Lower  Canada,  S.  C.  Montreal,  449.     1859. 

§  7.  Construction  of  statutes  of  1849  and  1857,  as  to 
the  taxation  of  foreign  insurance  companies,  doing  busi- 
ness in  the  cities  and  villages  in  New  York,  other  than 
New  York  City.  Fire  Depart,  of  Troy  v.  Bacon,  3  Keyes, 
402.     1867. 

§  8.  The  revenue  law  of  June  30,  1864,  and  amend- 
ment of  July  13,  1866,  under  which  a  tax  is  laid  upon  the 
amounts  insured,  renewed  or  continued  by  insurance  com- 

lies  upon  the  i^ross  amounts  of  premiums  received,  and 


panies  upon 


I 


TAXATION. 


627 


assessments  made  by  them,  and  also  upon  dividends,  un- 
distributed sums  and  income.  i«  not  a  "  direct  tax,"  but  a 
duty  or  excise ;  and  the  income  having  been  received  in 
coined  money,  the  tax  is  to  be  based  on  the  same  nominal 
amount,  increased  by  the  difference  between  coin  and  legal 
tender  currency.  Pacific  Ins.  Co.  v.  Soule,  7  Wallace,  433, 
1868. 

§  9.  A  law  taxing  an  "  insurance  company  associated 
under  the  laws  of  a  government  other  than  one  of 
the  United  States,"  applies  to  an  English  insurance  com- 
pany, though  some  members  of  it  are  citizens  of  one  of 
the  United  States,  and  which,  though  not  incorporated, 
acts  by  a  law  of  pa»*liament  independently  of  the  rules 
governing  partnerships.  It  is  as  to  taxes  an  artificial  body. 
Oliver  v.  Liverpool  &  Lo.  don  Life  &,  Fire  Ins.  Co.  100 
Mass.  531.     1868. 

§  10.  Tax  on  a  corporation  having  a  capital  stock  is  a 
tax  on  their  franchises,  not  their  property ;  therefore  no  de- 
duction from  the  value — the  stock  being  the  measure  of 
the  value  of  the  franchise — is  to  be  mac'e  because  its  prop- 
erty is  partly  invested  in  U.  S.  bonds.  Manuf  Ins.  Co.  v. 
Loud,  100  Mass.  146.     1868. 

§  11.  Where  the  stock  and  sui-plus  are  to  be  taxed 
"  at  its  actual  value,"  the  assessors  in  returning  the  value 
for  taxation  are  t*^  deduct  the  company's  contingent  lia- 
bility on  outstanding  policies,  estimated  by  the  usual  rules 
or  tables.  People  {ex  rel.  Glens  Falls  Ins.  Co.)  v.  Fergu- 
son, 38  N.  Y.  89.     1868. 

§  12.  A  municipal  corporation,  having  power  to  tax 
the  real  and  personal  property  in  it,  cannot  tax  the  annual 
premiums  of  an  insurance  company,  they  being  in  the  nature 
of  an  income.  City  of  Burlington  v.  Putnam  Ins.  Co.  31 
Iowa,  102.     1870. 

§  13.  A  statute  that  foreign  insurance  companies 
shall  pay  $100  to  the  city  where  their  oflice  is  situated,  in 
full  for  all  taxes  or  licenses  the  city  has  power  to  impose, 
is  not  repealed  by  a  subsequent  charter  of  the  city,  autlior- 
izinsj  it  to  license  all  insurance,  banking  and  other  com- 
panies, arid  the  city  ordinance  requiring  $200  for  license  is 


628 


TAXATION. 


unauthorized.    City  of  St.  Louis  v.  Independent  Ins.  Co. 
ofMass.  47Mo.  146.     1870. 

§  14.  A  power  given  to  a  city  to  license  insurance 
companies  is  not  a  right  to  tax  for  revenue,  and  the  charge 
for  license  must  be  limited  to  the  necessary  and  incidental 
expenses  of  issuing  it.  Il  is  never  to  be  deduced  by  im- 
plication that  the  Legislature  divests  itself  of  the  power  to 
tax,  either  from  the  silence  of  the  charter  as  to  taxation, 
or  from  its  exemption  from  a  general  law  relating  to  cor- 
porations— the  latter  exemption  simply  guaranteeing  it 
against  alteration.  City  of  fet.  Louis  v.  Boatmen's  Ins.  & 
Trust  Co.  47  Mo.  150.  1870.  Affirmed  in  Same  v.  Mar. 
Ins.  Co.  lb.  163. 

§  15.  The  law  required  taxation  upon  the  capital 
stock  and  accumulated  surplus.  This  tenn  means  the  fund 
in  excess  of  capital  stock,  after  payment  of  debts,  and  is 
the  accumulation  of  interest  and  premiums.  That  the 
premium  fund  is  liable  for  losses  on  outstanding  policies, 
— yet  the  liability  being  contingent,  and  the  capital  stock 
being  equally  subject  to  such  losses,  and  the  fund  being 
made  up  of  expired  premiums  as  well"  as  unexpired, — 
does  not  change  its  character  as  an  accumulated  surplus. 
State  ex  rel.  People's  Fire  Ins.  Co.  v.  Parker,  5  Vroom  (34 
N.  J.  Law),  479.    1871. 

§  16.  Per  Saffold,  J.  That  by  a  law  imposing  a  tax 
of  $200  on  all  foreign  insurance  companies  doing  business 
in  Alabama,  for  the  benefit  of  a  certain  medical  college, 
the  college  acquired  no  vested  right  to  the  fund,  as  no 
consideration  moved  from  it.  Medical  College  of  Ala.  v. 
Muldon,  46  Ala.  603.     1871. 

§  17.  Tax  law  on  "all  dividends  declared,  or  earned 
and  not  divided,"  does  not  apply  to  sum  previously  set 
aside  as  a  dividend  and  paid  over,  whether  in  money  or 
credit  on  stock  notes.  But  in  the  tax  on  gross  premiums, 
the  amount  paid  in  dividends  is  not  released  from  the 
computation.  Citizen's  Mut.  Ins.  Co.  of  Mobile  v.  Lott,  45 
Ala.  185.     1871. 

See  Foreign  Insurance  Companies,  §  21,  29,  84,  41. 


THEFT. 

§  1.  Where  policy  provided,  "and  it  is  hereby  de- 
clared that  this  company  shall  not  be  liable  to  make  good 
any  loss  by  theft ;  or  any  loss  or  damage  by  fire  which 
may  happen  or  take  place  by  means  of  any  invasion,  in- 
surrection, riot,  or  civil  commotion,  or  any  military  or 
usurped  power ; "  Held^  that  the  clause  protecting  compa- 
ny against  losses  by  theft,  was  independent  of  the  one 
immediately  following ;  and  assured  could  not  recover  for 
losses  by  theft,  although  another  clause  in  policy  required 
assured  "  to  use  all  diligence  in  removal  and  preservation 
of  the  property,  and  in  case  of  failure  on  his  part  so  to  do, 
the  company  would  not  be  liable  for  loss  or  damage  sus- 
tained in  consequence  of  such  neglect ; "  and  such  loss  by 
theft  was  occasioned  by  assured  removing  goods,  in  com- 
pliance with  such  last  clause.  Webb  v.  Protection  <& 
^tna  Ins.  Co.  14  Mo.  3.     1851. 

§  2.  An  insurance  company,  insuring  against  fire,  is 
responsible  for  the  loss  of  goods  stolen  during  the  fire, 
there  being  no  exception  in  the  policy  against  theft.  Til- 
ton  V.  Hamilton  Fire  Ins.  Co.  14  How.  N.  Y.  363.      1857. 

§  3.  Insurers  against  fire  alone  are  liable  for  loss  by 
theft,  consequent  upon  the  carefiil  removal  of  the  insured 
goods  by  thy  insurance  watch,  from  a  burning  building  in 
which  they  must  otherwise  have  been  burned,  it  being  a 
"  loss  or  damage  by  fire."  Tilton  v.  Hamilton  Fire  Ins. 
Co.  1  Bosw.  N.  Y.  367.     1857. 

§  4.  Where  policy  provided  that,  "  in  case  of  fire  or 
of  loss  or  damage  thereby,  it  shall  be  the  duty  of  assured 
to  use  their  best  endeavors  for  saving  and  preserving  the 
property,"  &lq,.  ;  Held.,  that  thevalue  of  goods  lost  or  stol- 
en, whilst  in  process  of  removal,  (in  accordance  with  the 
above  requirement  of  the  policy),  from  a  building  actually 
on  fire,  was  a  loss  within  the  terms  of  the  policy.  Inde- 
pendent Mut.  Ins.  Co.  V.  Agnew,  34  Penn.  St.  96.     1869. 

§  5.  The  liability  of  an  insurance  company  for  losses 
by  theft   (there  being  no  exception  of  losses  by  theft  in 


630 


TITLE. 


the  policy),  is  not  restricted  to  the  precise  period  when  the 
fire  was  extinguished ;  the  precise  time  when  a  theft  oc- 
curs is  not  important,  if  it  be  occasioned  directly  by  the 
fire.  New  Mark  v.  London  &  Liverpool  Fire  and  Life 
Ins.  Co.  30  Mo.  160.     1860. 

§  6.  If  the  assured  uses  his  utmost  exertions  in  pro- 
tecting and  securing  the  property  insured,  at,  during,  and 
subsequently  to  the  fire,  a  loss  by  larceny  falls  upon  the 
insurers.     Witherell  v.  Maine  Ins.  Co.  49*Me.  200.     1861. 

§  7.  Where  by  the  terms  of  a  policy  the  assured  in 
case  of  fire  is  under  obligation  to  labor  for  the  protection 
of  the  goods  insured,  and  such  goods,  in  an  attempt  to 
avoid  a  fire,  are  injured  or  stolen,  the  insurer  is  liable  for 
the  loss.  Talamon  v.  Home  <fc  Citizens'  Mut.  Ins.  Co.  16 
La.  An.  426.     1862. 

§  8.  An  insurer  is  not  liable  for  goods  stolen  in 
transit  from  a  burning  building,  because  the  fire  warden  ad- 
vised the  removal  of  the  property,  where  the  policy  con- 
tains a  clause  excluding  responsibility  for  loss  by  theft 
during  or  subsequent  to  the  fire.  Fernandez  v.  Merchants' 
Mut.  Ins.  Co.  17  La.  An.  131.     1865. 

Sec  Removal,  §  2,  5,  7.    Risk,  14. 


TITLE. 

§  1.'  Failure  to  disclose  the  fact  tliat  property  insured 
stood  upon  ground  leased  by  assured  ;  Jleld,  to  avoid  the 
policy  111  a  mutual  company,  where  tlie  property  was 
bound  for  payment  of  the  assessments.  But  as  the  failure 
to  disclose  arose  through  ignorance,  without  fraud ;  Held, 
that  the  premium,  and  interest  thereon  from  time  of  its 
payment,  should  be  returned  to  tlie  assured.  Mutual  As- 
surance Co.  V.  Mahon,  5  Call,  Va.  517.     1805. 

<§  2.  The  property  was  deseri]>e«i  by  insured  as 
"  their  "  stone  mill.    Proof  was,  that  their  title  was  in  part 


TITLE. 


631 


/ 


good,  in  part  derived  from  executory  contract,  and  in  part 
that  of  mortgagees.    Held,  a  misrepresentation  as  to  title, ' 
which,  if  material  to  the  risk,  avoided  the  policy.     Colum- 
bian Ins.  Co.  V.  Lawrence,  2  Pet.  U.  S.  25.     1829. 

§  3.  A  representation,  in  reply  to  a  question  as  to 
title,  that  the  property  was  "  his/'  when  he  held  but  a  life 
estate,  and  built  the  house  on  land  belonging  to  his  wife 
and  her  sister  in  common,  with  the  right  to  dispose  of  it 
by  removal  or  occupation,  is  not  such  a  misrepresentation 
as  will  avoid  the  policy,  in  the  absence  of  intentional 
deception,  or  over- valuation  of  the  house.  Curry  v.  Com- 
monwealth Ins.  Co.  10  Pick.  Mass.  535.     1830. 

§  4.  Assured  is  not  bound  to  disclose  the  nature  of 
his  title  to  the  insurers,  unless  it  is  inquired  about,  or  re- 
quired to  be  disclosed  by  condition  in  the  policy.  Curry 
V.  Commonwealth  Ins.  Co.  10  Pick.  Mass.  535.     1830. 

§  5.  The  assured's  house  had  been  mortgaged,  and 
the  equity  of  redemption  seized  on  execution,  when  he 
insured  it  as  "  his "  property ;  no  inquiry  having  been 
made  by  the  insurers  as  to  the  state  of  his  title.  Held, 
that  this  fact  was  not  material  to  the  risk,  and  that  there 
had  been  no  misrepresentation  in  the  statement  that  it 
was  "  his "  property.  Strong  v.  Manufacturers'  Ins.  Co. 
10  Pick.  Mass.  40.     1830. 

§  6.  Where  policy  required  no  disclosure  of  the  title 
or  interest  to  be  insured,  and  assured  called  it  "  his " 
building  when  it  stood  upon  land  of  another,  under  verbal 
lease,  terminable  at  six  months'  notice ;  Held,  not  to  be 
such  a  concealment  as  would  avoid  the  policy.  Fletcher 
V.  Commonwealth  Ins.  Co.  18  Pick.  Mass.  419.     1-836. 

§  7.  Whenever  the  nature  of  the  interest  insured 
might  have  an  influence  upon  the  underwriter,  either  not 
to  underwrite  at  all,  or  not  to  underwrite  except  at  a 
higher  premium ;  it  must  be  deemed  material  to  the  risk, 
and  a  misrepresentation  or  concealment  of  it  will  avoid 
the  policy.  A  decisive  test  of  materiality  is  to  ascertain 
whether,  if  the  true  state  of  the  title  had  been  known,  it 
would  have  enhanced  the  premium.  This  question  of  ma- 
teriality is  one  of  fact  for  the  jury ;  and  there  is  no  pre- 


632 


TITLE. 


sumption  of  law  that  a  misdescription  of  the  premises, 
•  material  to  the  risk,  did  reduce  the  premium ;  the  infer- 
ence in  such  case  being  one  of  fact  to  be  left  to  the  jury. 
Columbian  Ins.  Co.  v.  Lawrence,  10  Pet.  U.  S.  507.     1836. 

§  8.  Where  the  charter  of  a  mutual  company  pro- 
vided that,  in  case  the  insured  had  less  than  an  unencum- 
bered fee  simple  title,  and  the  same  was  not  expressed  in 
the  policy,  it  should  be  void ;  and  no  suggestion  of  any 
less  title  was  contained  in  the  policy  in  question,  or  the 
application  therefor ;  Held^  that  there  was  a  warranty  of 
such  title;  and  that  the  insured  was  required  to  prove 
such  title  at  the  trial ;  and  that  the  statement  of  a  witness, 
that  the  party  owned  the  property  insured,  did  not  show 
such  title.  In  Illinois  the  iasured  should  prove  the  title 
to  his  real  estate  down  from  the  United  States.  Illinois 
Mut.  Fire  Ins.  Co.  v.  Marsi3ille3  Manuf.  Co.  1  Gilm.  111. 
236.     1844. 

§  9.  If  the  insured,  at  time  of  insurance,  represent, 
and  insure,  the  whole  property  as  his,  when  in  fact  he 
owns  but  one-half ;  the  policy  is  void,  whether  the  mis- 
representation be  through  ignorance  or  design.  Catron  v. 
Tennessee  Ins.  Co.  6  Humphrey,  Tenn.  176.     1845. 

§  10.  The  charter  of  the  insurance  company  provided, 
that  the  policy  shall  be  deemed  valid  and  binding  on  the 
company,  in  all  cases  where  the  insured  has  a  title  in  fee 
simple  to  the  buildings  insured,  and  the  land  covered 
thereby ;  but  if  the  assured  have  a  less  estate  therein,  the 
policy  shall  be  void,  unless  the  true  title  of  the  assured 
be  expressed  therein,  and  in  the  application  therefor.  The 
assured  had  purchased  the  estate  in  fee  from  a  corporation, 
and  was  in  possession,  but,  by  reason  of  a  defect  in  the 
execution  of  his  deed,  the  legal  title  did  not  pass  to  him. 
Held^  that  the  assured,  having  the  equitable  title  in  fee 
simple,  was  entitled  to  recover,  and  that  by  the  term  in 
the  charter,  "  less  estate  therein,''  was  intended  estates  of 
less  duration  than  estates  in  fee  simple.  Swift  v.  Ver- 
mont Mut.  Fire  Ins.  Co.  18  Vt.  305.     1846. 


§  11.     A   statement  in 
insured  were  the  property  of 


a  policy, 
i"  plaintiff, 


that  the  premises 
does  not  amount  to 


TITLE. 


633 


a  warranty ;  and  the  declaration  need  not  aver  such  own- 
ership,   uilbert  v.  National  Ins.  Co.  12  Irish  Law,  143. 

1848. 

§  12.  Where  policy  stipulated,  "  that  the  true  title  of 
assured  must  be  disclosed,  or  the  policy  should  be  void ;" 
and  the  policy  was  issued  subject  to  the  act  of  incorpora-  *t 
tion  and  by-laws,  to  the  "lien  thereby  established  on  " 
the  property  insured,"  and  the  assured  called  the  property 
"theirs,"  without  anything  further  being  said  as  to  the 
nature  of  their  title,  and  it  appeared  that  they  only  held  a 
bond  for  a  deed ;  Held^  that  the  policy  was  void.  Brown 
V.  Wniiams,  28  Me.  "262.     1848. 

§  13.  Assured  was  a  tenant  for  a  year,  and  in  policy 
the  property  was  described  as  "  his  building."  Held.,  not 
equivalent  to  a  warranty,  on  the  part  of  assured,  that  he 
was  the  owner  of  the  tenements,  when  no  inquiry  was 
made  as  to  the  interest  to  be  insured,  nor  does  it  consti- 
tute a  material  misrepresentation  of  the  fact.  Niblo  v.. 
North  American  Ins.  Co.  1  Sandf  N.  Y.  551.     1848. 

§  14.  A  policy  of  a  mutual  insurance  company  re- 
quired the  disclosure  of  the  "  true  title  "  in  the  application 
for  insurance,  and  provided  that  the  company  should  have 
a  "  lien"  upon  the  property  insured.  In  the  application,  !l 
which  was  made  part  of  the  policy,  the  applicants  de- 
scribed the  property  to  be  insured  as  "  theirs,"  when  in  fact 
they  only  held  a  bond  for  a  deed,  on  certain  conditions. 
Held.,  that  the  policy  was  void.  Smith  v.  Bowditch  Mut. 
Ins.  Co.  6  Cush.  Mass.  448.     1850. 

§  15.  Where  condition  in  act  of  incorporation  of  a 
mutual  insurance  company  provided,  "  That  if  the  insured 
have  an  estate  less  than  fee  simple  to  the  buildings  insured 
and  the  lands  upon  which  thev  stand,  the  policy  shall  be 
void,  unless  the  true  title  of  tne  insured,  and  the  encum- 
brances, be  expressed  in  the  policy,  and  in  the  application 
therefor ;"  and  in  the  application.  Philips,  Beckel  &  Co., 
to  whom  policy  was  issued,  represented  the  pi'operty  as 
theirs,  in  answer  to  inquiry,  and  also  failed  to  disclose 
four  encumbrances  on  the  same,  when  in  fact  they  were 
but  stockholders  in  the  "  Dayton  Hydrftulic  Company,"^ 


634 


TITLE. 


// 


in  which  compjiny  the  fee  vCvSted,  and  which  company  had 
leased  the  premises  for  99  years  to  other  parties.  Heldy 
that  the  failure  to  state  the  true  title  and  encumbrances 
was  in  violation  of  the  condition,  and  avoided  the  policy ; 
although  Philips,  Beekel  &,  Co.  were  also  all  the  stock- 
holders of  the  Hydraulic  Company.  Philips  v.  Knox 
County  Mut.  Ins.  Co.  20  Ohio,  174..    1851. 

§  16.  Where  charter  provided  that  "  if  assured  have 
a  less  estate  than  fee  simple,  or  if  the  premises  be  encum- 
bered, policy  may  be  void,  unless  the  true  title  of  the  as- 
sured and  the  encumbrances  on  the  premises  be  expressed 
therein,"  and  assured  described  himself  in  the  application, 
as. "owner  of  the  buildings,"  and  the  company  had  no  other 
notice  of  his  title,  and  it  appeared  that  he  was  a  tenant  by 
curtesy  only ;  the  policy  is  void.  Leathers  v.  Ins.  Co.  4 
Fost.  K  H.  259.     1851. 

• 

§  17.  Charter  provides  "that  no  insurance  shall  be 
made  unless  insured  has  a  good  and  perfect  unencumbered 
title."  This  implies  a  title,  4,ood  both  at  law  and  in  eq- 
uity ;  and  an  outstanding  mortgage  avoids  the  policy,  even 
though  there  is  a  parol  proof  that  the  delit  has  been  paid. 
Warner  v.  Middlesex  Mut.  Association  Co.  21  Conn.  444. 
1851. 

§  18.  Assured  applied  for  insurance  on  a  grist  mill,  a 
water  wheel  and  one  run  of  stones,  ttc,  and  described  the 
property  as  "  his,"  when  in  fact  he  was  but  the  lessee  of 
the  mill,  and  represented  that  two-thirds  the  value  of  the 
mill  was  £300,  obtaining  insurance  for  that  amount,  when 
in  fact  the  proof  Avas  that  it  was  only  worth  £150.  Hehi, 
that  the  statements  in  his  a})plication,  on  which  he  ob- 
tained the  insurance,  were  untrue  in  two  most  important 
particulars,  to  wit :  as  to  ownershij)  of  the  proi)erty,  and 
value  of  the  mill,  and  especially  of  his  interest  in  it,  and 
that  he  could  not  therefore  recover.  The  affidavit  re- 
quired l>y  the  condition,  was  made  by  assured,  but  was 
not  verified  by  oath  or  affirmation,  and  was  not  in  the 
form  of  an  affidavit ;  Held,  therefore,  that  upon  that  lyround 
also  the  assured  was  precluded  from  recovering.  8haw  v. 
St.  Lawrence  Co.  Mut.  Ins.  Co.  1 1  Upper  Canada,  Q.  B. 
73.     1852. 


TITLE. 


635 


m 


^  §  19.  Where  it  is  stipulated  "  that  policy  shall  be 
void,  unless  the  true  title  of  the  insured  be  expressed  in 
the  application ; "  a  failure  to  make  known  that  another 
person  owns  part  of  the  property,  and  having  it  described 
in  the  policy  as  "his"  property,  wnll  avoid  the  policy. 
Wilber  v.  Bowditch  Mut.  Ins.  Co.  10  Cush.  Mass.  446. 
1852. 

§  20.  A  policy  in  a  mutual  company  provided  "  that 
any  policy  issued  by  the  company  shall  be  void,  unless 
the  true  title  of  the  assured  be  expressed  in  the  proposal 
or  application  for  insurance."  There  was  a  question  in 
the  application  as  to  encumbrances,  which  was  truly  an- 
swered, but  none  asking  information  as  to  the  "title," 
other  than  the  one  as  to  encumbrances.  The  applicant 
called  the  property  insured  "  his  property."  At  the  time 
the  application  was  made,  the  assured  was  in  actual  pos- 
session of  the  property,  and  though  the  estate  was  vari- 
ously and  heavily  encumbered  by  mortgages,  sales  on  exe- 
cution, and  otherwise,  yet  these  were  all  redeemable,  and 
upon  payment  of  them  the  assured  would  have  had  the 
fee  of  the  estate.  Held,  that  there  was  no  misrepresenta- 
tion as  to  title.  Buffum  v.  Bowditch  Mut.  Ins.  Co.  10 
Cush.  Mass.  540.     1852. 

§  21.  The  assured's  application  for  an  insurance  with 
the  defendants  contained  the  following  questions  and  an- 
swers :  Question. — "  Occupied  by  applicant  or  tenant  ? " 
Answer.— "Tenant."  Q.— "Title  by  deed,  or  how?" 
A. — "  Deed."  Q. — "  Encumbered  or  not,  if  not,  say  no." 
A. — "  No."  The  assured  afterward  made  affidavit  "  that 
he  is  the  bona  fide  owner  of  the  said  property  and  of  the 
said  policy;  that  the  said  property  is  not  and  was  not 
in  any  way  encumbered  by  mortgage  or  otherwise."  It 
appeared  that  the  assured  was  assignee  of  one  J.  P.,  who 
had  a  lease  from  one  M.  at  a  yearly  rent,  with  a  right  of 
purchase  at  a  certain  price ;  and  that  there  was  a  mort- 
gage from  M.  to  one  H.  including  the  property  insured. 
Jleld,  that  (irrespective  of  the  mortgage)  the  assured  had 
misrepresented  his  title,  and  could  not  recover  on  the  policy. 
Walroth  v.  St.  Lawrence  County  Mut.  Ins.  Co.  10  Upper 
Canada,  Q.  B.  525.     1852. 


636 


TITLE. 


§  22.  The  charter  of  a  mutual  company  authorized 
"  insurances  on  any  kind  of  property,"  and  provided  that 
the  premium  notes  should  be  a  lien  on  the  real  estate  in- 
sured. The  insured  having  a  mixed  interest,  derived  in 
part  as  trustee,  in  part  as  an  executor,  and  in  part  as  cred- 
itor, effected  an  insurance  with  such  company,  without 
any  disclosure  of  the  nature  of  his  title,  or  any  questions 
asked  concerning  it,  or  any  conditions  in  the  policy  requir- 
ing such  disclosure;  and  upon  happening  of  the  loss, 
company  set  up  in  defense  that  the  charter  of  the  com- 
pany did  not  allow  an  insurance  on  any  real  estate  except 
such  upon  which  the  assured  could  create  a  valid  lien  to  the 
company.  Held^  that  the  charter  authorized  insurances  on 
any  kind  of  property,  personal  as  well  as  real,  and  that 
assured  had  a  lien  at  the  time  of  insurance,  and  at  time  of 
loss,  which  was  an  insurable  interest  under  the  charter. 
Allen  V.  Mut.  Fire  Ins.  Co.  2  Md.  111.     1852. 

§  23.  Where  act  of  incorporation  provided  that  if  as- 
sured have  a  less  estate  than  a  title  in  fee  simple  unen- 
cumbered to  the  buildings  insured,  and  to  the  land  cov- 
ered by  the  same,  the  policy  shall  be  void,  unless  the  true 
title  of  the  insured  and  of  the  encumbrance  on  the  prem- 
ises be  expressed  therein,  as  in  the  application  therefor, 
and  the  plaintiffs'  application  represented  that  they  were 
the  owners  in  fee,  and  that  the  premises  were  not  encum- 
bered, when  in  fact  they  were  only  interested  as  mort- 
gagees ;  Held^  there  could  be  no  recovery  on  the  policy. 
Brown  v.  Gore  District  Mut.  Ins.  Co.  10  Upper  (Janada, 
Q.  B.  353.     1852. 

§  24.  Failure  to  disclose  true  title  or  extent  of  inter- 
est, in  absence  of  fraudulent  concealment  or  misrepresenta- 
tion, will  not  avoid  policy ;  no  inquiry  as  to  title  or  inter- 
est being  made.  Morrison  v.  Tennessee  Marine  <&  Fire 
Ins.  Co.  18  Mo.  262.     1853. 

§  25.  Where  insured  called  it  "  his  stock  of  tobacco," 
under  policy  in  which  no  disclosure  of  interest  or  title  was 
called  for;  and  the  facts  were,  that  the  tobacco  was 
owned  jointly  by  assured  and  another  party ;  Held^  not 
to  be  a  misrepresentation  that  avoided  the  policy;  and 
assured    might    recover   to   the   extent   of  his  interest. 


TITLB, 


637 


■I-  ( 


Hartford  Protection  Ins.  Co.  v.  Harmer,  2  Ohio  St.  (22 
Ohio),  452.     1853. 

§  26.  Where  policy  provided  for  "  a  true  statement 
of  the  interest  of  the  assured,  if  less  than  fee  simple,"  and 
also  for  "  a  lien  on  all  buildings  insured ; "  and  the  assured 
represented  the  property  as  "his  building,"  when  in  fact  it 
had  been  erected  on  land  of  another,  under  an  agreement 
to  purchase  (assured  to  pay  rent  in  the  mean  time) ;  and 
the  conditions  of  such  purchase  had  not  been  fulfilled  at 
the  time  of  the  insurance ;  Held,  that  in  the  absence  of 
knowledge  on  the  part  of  the  underwriters  of  the  true 
state  of  the  title,  the  policy  was  void  for  misrepresenta- 
tion. Marshall  v.  Columbian  Mut.  Ins.  Co.  7  Fost.  N.  H. 
157.     1853. 

§  27.  The  policy  required  the  applicant  for  insurance 
to  make  a  true  representation  as  to  his  title  and  interest  in 
the  property  to  be  insured.  In  the  application  which  was 
made  a  part  of  the  contract,  was  this  question :  "  Whose  is 
the  property  insured  ? "  To  which  answer  was  made :  "  L. 
Miller's."  In  fact,  L.  Miller  was  a  judgment  creditor,  to 
whom  this  property  had  been  set  off  on  execution,  subject 
to  two  small  mortgages  to  other  parties,  and  at  time  of  in- 
surance, as  well  as  at  time  of  loss,  the  debtor's  equity  of 
redemption  had  not  expired.  Held^  that  the  omission  to 
make  known  the  debtor's  equity  of  redemption  was  not 
such  a  misrepresentation,  within  the  meaning  of  the  condi- 
tion, as  would  avoid  the  policy.  Clapp  v.  Union  Mut. 
Fire  Ins.  Co.  7  Fost.  N.  H.  143.     1853. 

§  28.  A.  owned  a  tannery  building,  and  B.  owned  the 
stock  therein.  Agent  of  the  insurance  company  knew  the 
nature  of  the  several  interests,  and,  at  his  suggestion,  they 
took  out  insurance  in  their  joint  names.  One  condition  of 
the  .policy  required  a  full  disclosure  as  to  title  and  en- 
cumbrances, under  penalty  of  forfeiture.  In  an  action 
thereon  in  the  names  of  A.  and  B. ;  Held,  that  the  policy 
was  good,  and  that  the  action  mieht  be  maintained;  and 
also  that  parol  evidence  was  admissible  to  show  that  the 
parties  agreed  to  treat  such  insured  property  as  the  joint 
property  of  the  two  owners.  Peck  v.  New  London  Mut. 
Ins.  Co.  22  Conn.  575.     1853. 


638 


TITLE. 


§  29.  Under  a  clause  in  a  mutual  company,  giving 
the  company  a  lien  on  j^roperty  insured  to  the  amount  of 
the  premium  note,  and  declaring  that  a  false  representa- 
tion, material  to  the  risk,  should  avoid  the  policy;  the 
policy  was  held  void,  because  the  title  of  assured  was  de- 
rived by  a  defective  tax  title,  and  foreclosure  of  mortgage 
on  only  one-half  the  property.  Pinkham  v.  Moraug,  40 
Me.  587.     1855. 

§  30.  Assured  in  application,  which  was  made  part 
of  the  policy,  in  reply  to  question,  answered  that  the  land 
on  which  the  building  was  erected  was  hers ;  when  she 
had  only  a  life  estate,  but  her  husband's  will  had  made  no 
disposition  of  the  remainder,  and  the  heirs  had  never 
made  claim  during  twelve  years  since  probate  of  the  will. 
Heldy  that  the  answer  was  substantially  true,  and  not  such 
a  misrepresentation  as  to  avoid  the  policy,  which  con- 
tained no  stipulation  requiring  a  disclosure  of  title,  other 
than  that  required  by  the  question  in  the  application. 
Allen  V.  Charleston  Mut.  Fire  Ins.  Co.  5  Gray,  Mass.  384. 
1855. 

§  31.  The  by-laws  of  defendant  provided,  that  "any 
policy  issued  by  this  company  shall  be  void,  unless  the 
true  title  and  interest  of  the  assured  be  expressed  in  the 
application,"  <fec.  In  answer  to  the  question  in  applica- 
tion, "  whose  is  the  property  to  be  insured  ? "  the  answer 
was  "applicant's;"  and  in  the  policy,  and  application 
also,  the  property  was  designated  as  "  his  stone  dwelling- 
house."  The  plaintiff  had  oeen  in  possession  of  the  land 
for  several  years  under  an  executory  agreement  for  the  pur- 
chase thereof,  had  erected  the  insured  building,  and  be- 
fore the  application  for  insurance  had  paid  all  the  pur- 
chase money,  but  had  not  yet  the  legal  title  in  himself. 
Held^  that  this  w^as  not  a  false  warranty  of  title,  within 
the  meaning  of  the  by-law,  nor  in  any  sense ;  the  plaintiff 
being  the  owner  of  tne  dwelling-house  and  land.  Chase 
V.  Hamilton. Mut.  Ins.  Co,  22  Barb.  N.  Y.  527.     1856. 

§  32.  "Where  policy  provided  that  "  in  all  cases  of  ap- 
plication for  insurance  in  this  company,  the  applicant  shall 
state  the  true  value  of  the  property,  and  also  the  encum- 
brance on  the  same,"  and  again,  "  if  the  interest  to  be  in- 


TITLE. 


C39 


40 


any 


snred  be  a  household  or  other  interest  not  absolilte,  it  must 
be  stated  in  the  policy,  otherwise  the  policy  shall  be  void," 
and  in  reply  to  interrogatory  in  application  as  to  encum- 
brance, the  assured  an8^vered  that  there  was  no  encum- 
brance, when  in  fact  he  was  in  possession  under  an  agree- 
ment to  purchase,  and  had  paid  but  a  small  sum  of  the  pur- 
chase money,  the  balance  being  a  claim  or  lien  against  the 
property ;  Held^  that  the  concealment  of  the  facts,  and  in- 
surance of  the  property  on  his  own  account  for  a  larger 
sum  than  the  amount  of  purchase  money  actually  paid  at 
time  of  the  insurance,  avoided  the  policy.  Reynolds  v. 
State  Mut.  Ins.  Co.  2  Grant,  Pa.  326.     1850. 

§  33.  Policy  stipulated  "  that  the  assured  should  make 
a  true  representation  as  to  title  and  interest,  and  also  as 
to  encumbrances,  or  policy  should  be  void."  To  questions : 
"  Who  owns  the  buildings  \ "  and  "  whether  encumbered  ? " 
he  answered,  "  owned  l>y  insured  ; "  "  no  encumbrance ;  " 
when  in  fact  he  was  but  the  mortgagee,  and  ht.vl  no  other 
title.  Held^  to  be  such  a  misrepresentation  of  ''  title  and 
interest "  as  to  avoid  the  policy.  Jenkins  v.  Quincy  Mut. 
Fire  Ins.  Co.  7  Gray,  Mass.  370.     1856. 

§  34.  Insurance  on  property  described  "  his  goods," 
in  absence  of  fraud  or  misrepresentation,  will  protect  the 
interest  of  the  insured,  who  is  in  fact  owner  of  them, 
although  his  co-partner  is  interested  in  the  application  and 
profits  of  siich  goods.  Irving  v.  Excelsior  Fire  Ins.  Co.  1 
Bosw.  N.  Y.  507.     1857. 

§  35.  Plaintiff,  being  partner  in  a  firm  of  two,  and 
owning  all  the  property  and  assets  of  said  firm,  the  other 
being  interested  only  in  the  profits,  obtained  insurance  on 
"his  stock  of  cabinet  ware,  furniture,"  <fec.,  under  policy 
stipulating  that  if  the  "  interest  to  be  insured  be  a  lease- 
hold interest  or  other  interest  not  absolute,  it  must  be  ex- 
pressed in  writing,  or  the  policy  shall  be  void."  Held^ 
that  his  interest  was  an  absolute  equitable  interest,  to 
which  the  above  provision  did  not  apply.  Irving  v.  Ex- 
celsior Fire  Ins.  Co.  1  Bosw\  N.  Y.  507.     1857. 

§  36.  Where  assured  has  only  a  qualified  interest,  the 
mere  fact  of  not  disclosing  the  nature  j^nd  extent  of  that 


640 


TITLE- 


interest,  in  the  absence  of  inquiry  on  the  subject,  and  call- 
ing the  property  "  his,"  in  the  pol'.cy,  will  not  avoid  it ; 
unless  that  interest  be  misrepresented,  or  some  artifice  is 
used  to  conceal  it,  or  to  prevent  the  insurer  from  inquiry 
respecting  H,  in  which  case  it  is  a  question  for  the  jury  to 
decide,  whether  the  misrepresentation  or  concealment  is  of 
a  character  to  have  prejudiced  the  insurer,  and  amounts  to 
a  fraud.  Sussex  County  Mut.  Ins.  Co.  v.  Woodruff,  2 
Dutch.  N.  J.  541.     1857. 

§  37.  The  charter  of  a  mutual  insurance  company 
provided  that  every  person  obtaining  insurance  should 
thereby  become  a  member  during  continuance  of  policy, 
&c.;  that  his  land,  upon  which  the  insured  buildings 
stood,  should  be  pledged  to  the  company,  who  should  hold 
a  lien  thereon ;  and  thit  policies  should  be  deemed  valid 
in  all  cases  where  the  insured  had  a  title  in  fee  simple, 
unencumbered ;  but  if  the  assured  had  a  less  estate  in  the 
land,  then  the  policy  to  be  void,  unless  the  true  title  of 
the  assured  be  expressed  in  the  policy.  In  the  application 
made  by  assured  was  this  (question :  "  Have  you  a  clear 
title  to  the  property  which  you  wish  to  be  insured  ? "  In 
reply  to  which,  the  answer  was :  "  It  was  the  house  and 
possessions  of  J.  P.  Force,  whose  title  was  as  good  as  any 
man's  in  the  country,  and  who  was  the  father  of  my  wife." 
No  further  explanation  as  to  the  title  was  made,  and 
policy  was  issued  to  assured  in  his  own  name,  when  in 
fact  the  property  belonged  to  his  wife.  Ileldy  that  such 
answer  did  not  express  the  true  title  of  the  assured,  and 
that  the  policy  was  not  binding  upon  the  company.  Emi- 
nence Mut.  Ins.  Co.  V.  Jesse,  1  Metf  Ky.  523.     1858. 

§  38.  The  condition  in  policy,  that  "  it  shall  be  void  if 
the  party  insuring  his  goods  or  buildings  shall  couse  the 
same  to  be  described  in  the  policy  otherwise  than  as  they 
really  are,  so  as  the  'ame  be  charged  at  a  lower  premium 
than  is  herein  proposed,"  relates  to  a  misdescription  of  the 

froperty,  and  not  to  the  character  of  title  or  interest  in  it. 
ranklin  Fire  Ins.  Co.  v.  Coates,  14  Md.  285.     1859. 

§  39.  A  lebsee  of  land  for  a  term  of  years,  "  with  the 
right  to  remove  the  buildings  to  be  erected  thereon,  or  sell 
them  to  lessor  at  an  appraised  value,"  effected  an  insurance 


TITLE. 


641 


,  and  call- 
avoid  it ; 
artifice  is 
m  inquiry 
\ie  jury  to 
nent  is  of 
nounts  to 
)odruff,  2 

company 
ce  should  . 
of  policy, 
buildings 
lould  hold 
med  valid 
ee  simple, 
;ate  in  the 
le  title  of 
pplicatiou 
3U  a  clear 
red?"  In 
house  and 
>od  as  any 
ray  wife." 
uade,  and 
when  in 

that  such 
mred,  and 
ny.  Emi- 
L858. 

be  Vi)id  if 
cause  the 
an  as  they 
•  premium 
:ion  of  the 
erest  in  it. 
859. 

"  with  the 
on,  or  sell 
insurance 


on  the  buildings  as  the  owner  thereof;  the  policy  con- 
tained a  condition  that  "  if  the  interest  in  the  property  to 
be  insured  be  a  leasehold  interest,  or  other  interest  not 
absolute,  it  must  be  so  represented  to  the  company,  and 
expressed  in  the  policy  in  writing,  otherwise  the  insurance 
shall  be  void."  Held,  that  the  insured,  being  the  absolute 
owner  of  the  buildings,  had  a  right  to  insure  them  as 
such,  and  was  not  bound  to  disclose  the  extent  of  his  in- 
terest in  the  land  on  which  they  stood.  Hope  Mut. 
Ins.  Co.  V.  Brolaskey,  35  Penn.  St.  282.     1860. 

§  40.  Where  policy  provided  that  "  if  the  interest  to 
be  insured  be  a  leasehold,  mortgagee,  or  other  interest  not 
absolute,  it  must  be  so  expressed  in  writing  in  the  policy, 
or  policy  shall  be  void ; "  and  the  applicant,  in  applying 
for  insurance,  described  the  interest  to  be  insured  as  "  a 
mechanic's  lien ; "  Held,  that  the  failure  to  disclose  that 
the  lien  attached  to  a  building  standinsf  upon  leased 
ground,  or  that  the  lien  had  not  been  c»tablished  by 
judgment  of  court  at  the  time  of  the  insurance,  did  not 
avoid  the  policy,  under  the  above  condition.  Longhurst 
V.  Conway  Fire  Ins.  Co.  U.  S.  District  Court,  Northern 
Division,  Iowa,  Oct.  1861. 

§  41.  In  the  application,  the  question,  "  Is  it  encum- 
bered ?  If  so,  for  what  sum  ?  "  was  answered,  "Applicants 
are  mortgagees  in  possession.  Other  encumbrances  exist." 
^  I  fact  the  assured  held  the  third  mortgage  on  the  prem- 
ises, but  were  also  assignees  of  the  two  others,  and  had 
the  right  of  possession  to  the  premises.  Held,  that  there 
was  no  such  misrepresentation  of  the  title  as  would  avoid 
the  policy ;  and,  2d,  that  the  issuing  of  the  policy  upon 
such  appljcatio  %  without  the  amount  of  the  encumbrances 
being  stated,  was  a  waiver  of  such  an  objection;  anl 
as  the  insured  were  in  possession  under  a  first  mortgage, 
which  gave  them  an  unencumbered  interest  several  times 
greater  than  the  amount  of  insurance,  the  amount  of  the 
mortgages  was  not  material.  Nichols  v.  Fayette  Mut. 
Fire  Ins.  Co.  1  Allen,  Idass.  63.     1861. 

§  42.  Policy  provided  that  "  any  policy  issued  by 
this  company  shall  be  void,  unless  the  true  title  of  the  in- 
sured in  the  property  be  expressed  in  the  application  for 

41 


642 


TITLE. 


K>     ' 


insurance;"  and  in  the  application  itself,  there  was  no 
direct  question  or  statement  as  to  title,  but  in  reply  to  a 
question  as  to  encumbrances,  the  assured  stated  as  follows : 
"  First  mortgage  to  M.  W.  (name  of  assm*ed),  entered  Oct. 
1855 ; "  and  in  reply  to  a  question  whether  the  property 
was  insured,  stated  as  follows :  "  Not  on  the  first  mort- 
gagee's interest.  Not  known  to  be  by  any  other  concern." 
The  assureci  was  the  mortgagee  in  possession,  and  the  in- 
surance was  not  on  her  dwelling-house,  but  on  "  dwelling- 
house."  Held,,  that  the  answers,  taken  in  connection  with 
the  fact  that  there  was  no  other  statement  of  the  interest 
of  the  applicant  to  control  or  modify  it,  or  calculated  to 
mislead,  must  be  deemed  to  represent  the  interest  of  the 
applicant  truly,  and  to  apprise  the  com]) ny  that  ;^he  was 
not  the  absolute  owner  in  fee  simple ;  aiul,  if  not  sufficient- 
ly full,  it  was  the  duty  of  the  company  to  require  further 
and  fuller  statements.  Wyman  v.  People's  E(|uity  Ins. 
Co.  1  Allen,  Mass.  301.     1861. 

§  43.  An  applicant  for  insurance  had  descr.  ued  the 
property  in  a  written  application  as  "  his  house,"  and  it 
was  so  described  in  the  policy.  The  policy  •  m  : ;  \  led  the  fol- 
lowing condition:  "If  the  interest  to  b  •  ■  sured  be  a 
leasehold  interest  or  other  interest  not  absolute,  I^  must 
be  so  represented  to  the  company,  and  expressed  i.^  the 
policy  in  writing,  otherwise  the  insurance  shall  be  void." 
The  legal  title  to  the  property  was  in  another,  with  whom 
the  assured  had,  at  time  of  application,  made  a  parol  con- 
tract for  its  purchase,  for  a  price  agreed  upon,  to  be  paid 
unconditionally,  and  a  part  of  which  he  had  paid,  and  the 
insured  had  also  entered  into  possession  as  purchaser  and 
had  made  valuable  improvements  on  the  property.  Evi- 
dence, showing  the  above  state  of  the  title,  was  Jield  ad- 
missible, and  the  juiy  instmcted  that  the  assured  was  to 
be  regarded  as  the  owner  of  the  property,  if  he  had  the 
equitable  title,  and  his  interest  was  such  that  the  loss 
would  fall  on  him,  if  the  property  was  destroyed ;  that 
in  such  case  the  property  a  ras  "  his''  within  the  fair  import 
of  the  application,  in  which  it  was  described  as  his.  Held,, 
that  the  admission  of  the  evidence  and  the  charge  to  the 
jury  were  correct.  Held,,  also,  that  an  interest  which  is  so 
completely  vested  in  the  party  owning  it,  that  he  cannot 


TITLE. 


643- 


be  deprived  of  it  without  his  consent,  was  an  "absolute" 
interest ;  that  the  terms  "  interest "  and  "  title  "  were  not 
synonymous;  that  "absolute"  was  here  synonymous 
with  "  vested,"  and  was  used  in  contradistinction  to  con- 
tingent or  conditional,  and  that  the  interest  insured  was  a 
"  vested "  interest,  and,  therefore,  an  "  absolute  interest," 
within  meaning  of  the  condition  of  the  policy.  Hough  v. 
City  Fire  Ins.  Co.  29  Conn.  10.     1860. 

§  44.  The  by-laws  of  a  mutual  insurance  company,  by 
express  condition  made  part  of  the  contract,  provided  that 
the  written  application  tor  insurance  should  be  a  part  of 
the  policy,  and  should  be  held  to  be  a  warranty  on  the  part 
of  the  insured,  and  that  the  policy  should  be  void  unless 
the  true  title  and  interest  of  the  insured  were  stated  in  the 
application  and  all  encumbrances  on  the  property  disclosed, 
and  unless  the  apj)licant  should  make  a  true  statement  of 
all  the  facts  inquired  for  in  the  application.  The  applica- 
tion contained  the  following  inquiry :  "  Whose  is  the  prop- 
erty insured,  and  is  it  encumbered,  and  for  how  much  ? 
State  the  true  title  and  interest."  To  this  the  assured  had 
replied :  "  Owned  by  me ;  encumbered  to  several ;  about 
$6,000."  There  were,  in  fact,  mortgages  on  the  property 
to  the  amount  of  $13,000,  and  the  assured  had  conveyed 
all  his  remaining  interest  to  his  brother  by  an  absolute 
deed,  both  the  deed  and  the  mortgages  appearing  on  the 
public  records.  The  mortgages,  however,  beyond  the 
$6,000,  and  the  deed  to  assured's  brother,  were  given  with- 
out consideration,  and  for  the  purpose  of  defrauding  cred- 
itors, and  the  brother  had  agreed  to  reconvey  the  title 
whenever  requested.  Held,  that  the  conveyance  being  good 
betwcx'U  the  parties,  the  prf>perty  was  to  be  considered  as 
encumbered  beyond  the  amount  stated  by  the  assured,  and 
i\\Q  assured  as  having  no  title  or  insurable  interest,  and 
that  he  could  not  therefore  recover.  Ilehl,  also,  that  tlie 
representation  of  the  assured,  with  regard  to  the  ownership 
o^  the  property,  was  not  relieved  by  the  fact  that  the  deed 
to  his  brother  was  made  and  placed  upon  record  without 
the  knowledge  of  the  latter,  and  that  on  being  informed  of 
(he  fact,  the  grantee,  at  first,  refused  to  receive  it,  and 
{fterwards  only  agreed  that  the  title  might  remain  in  him 
to  be  reconveyed  whenever   the  assured  should  desire; 


It  ■ 


644 


TITLE. 


the  deed  being  good  between  the  parties,  and  the  right  to 
a  reconveyance  being  one  which  a  court  of  equity  would 
not  enforce.  Tread  way  v.  Hamilton  Mut.  Ins.  Co.  29 
Conn.  68.     1860. 

§  45.  An  insurance  company  is  chargeable  with 
knowledge  of  all  the  facts  stated  by  an  applicant  to  the 
company  s  agent,  respecting  an  applicant's  title  and  inter- 
est in  the  premises;  and  if  the  applicant  truly  states  to  the 
agent  the  real  condition  of  the  property,  he  cannot  be  held 
to  have  made  any  misstatement,  or  f)racticed  any  conceal- 
ment, notwithstanding  the  written  application  varies  from 
such  statement.  Hodgkins  v.  Montgomery  County  Mut. 
Ins.  Co.  New  York  Supreme  Court,  General  Term,  5th 
District,  1861.  American  Law  Register  (Febniary,  1862), 
Philadelphia. 

§  46.  A  condition  annexed  to  the  policy  provided 
that  when  the  interest  insured  was  a  leasehold  interest,  it 
should  be  so  expressed  in  the  policy,  or  it  should  be  void. 
The  building  insured  (a  four-story  brick  building)  was 
described  in  the  policy  as  owned  by  assured.  The  build- 
ing was  in  fact  erected  by  assured  on  leased  ground,  and 
contained  a  provision  that  at  the  expiration  of  the  term 
(twenty  years)  a  two-story  brick  building  was  to  be  left 
on  the  premises.  Held,  that  the  building  was  owned  by 
assured,  and  that  the  interest  insured  was  not  a  leasehold 
interest  within  the  meaning  of  the  condition.  David  v. 
Hartford  Fire  Ins.  Co.  13  Iowa,  69.     1862. 

§  47.  An  applicant  for  insurance  on  personal  property 
who  has  made,  but  not  delivered  a  bill  of  sale  thereof, 
taking  in  return  only  a  promissory  note  secm'ed  by  mort- 
gage thereon,  may  tinily  represent  and  warrant  himself  to 
be  the  owner  thereof.  Vogel  v.  People's  Mut.  Fire  Ins. 
Co.  9  Gray,  Mass.  23.     1857. 

§  48.  Two  partners,  in  an  application  for  insurance, 
which  was  required  to  contain  "  a  full,  fair,  and  substan- 
tially a  true  representation  of  all  the  facts  and  circum- 
stances respecting  the  property,  so  far  as  they  are  within  the 
knowledge  of  the  assured,  and  are  material  to  the  risk," 
stated  that  they  owned  the  land  on  which  the  building  to 
be  insured  stood.    In  fact,  one  of  them,  to  whom  the  policy 


TITLE. 


G45 


was  made  payable,  owned  it,  and  and  the  other  was  charged 
on  their  books  with  half  its  cost.  The  partnership  was 
afterwards  dissolved,  and  all  that  owner's  interest  in  its 
assets  transferred  to  his  copartner,  to  whom  the  insurers, 
with  notice  of  the  facts,  agreed  that  the  policy  should 
"  stand  good."  Held,  that  the  insurers  were  liable  for  a 
loss  by  a  subsequent  lire.  Collins  v.  Charlestown  Mut. 
Fire  Ins.  Co.  10  Gray,  Mass.  155.     1857. 

§  40.  An  application  made  to  a  mutual  insurance 
company,  in  a  printed  form  issued  by  them,  by  one  of 
their  agents,  without  knowlege  of  the  person  to  be 
insured,  for  insurance  on  a  building,  stated  that  "  the  prop- 
erty to  be  insured "  belonged  to  him ;  when  in  fact  he 
owned  the  building  only,  and  was  a  mere  tenant  at  will 
of  the  land  on  which  it  stood.  A  policy  was  issued  thereon, 
expressly  made  subject  to  the  lien  of  the  company  on  the 
interest  of  the  assured  in  any  personal  property  or  build- 
ings insured  and  the  land  under  such  buildmgs;  upon 
which  lien  the  company  expressed  their  intention  to  rely ; 
and  to  the  by-laws,  the  conditions  of  which  were  declared 
to  be  part  of  the  policy,  and  provided  that  the  application 
should  be  a  part  of  the  policy  and  warranty  on  the  part 
of  the  assured ;  that  any  policy  should  be  void  "  unless  the 
true  title  and  interest  of  the  insured  be  expressed  in  the 
proposal  or  application  ;"  that  "  property  held  by  lease,  or 
standing  on  land  so  held,  shall  not  be  insured,  unless 
specially  described  as  such  in  the  application ;"  that  "  in 
case  the  application  is  made  through  an  agent,  the  appli- 
cant shall  be  held  liable  for  the  representation  ;"  and  that 
"  no  insurance  agent  or  broker  forwarding  applications  to 
this  office  is  authorized  to  bind  the  company  in  any  case 
whatever."  Held,  that  the  assured  by  accei)tmg  the  policy 
adopted  the  representations  of  the  agent ;  that  the  failure 
to  specify  the  nature  of  his  interest  avoided  the  policy ; 
and  that  parol  evidence  of  the  agent's  knowledge  of  the 
actual  facts  was  admissible.  Kibbe  v.  Hamilton  Mut.  Ins. 
Co.  U  Gray,  Mass.  1G3.     1858. 

§  50.  That  A.  permitted  his  son  B.  to  use  his  name 
in  buying  and  selling  goods,  and  that  the  ])U8iness  was 
transacted  in  the  name  of  A,  k,  B.,  the  goods  being  in  fact 


M 


646 


TITLE. 


wholly  owned  by  B.  does  not  so  affect  the  legal  lights  of 
other  parties  as  to  render  void  a  policy  of  insurance 
effected  on  the  goods  in  the  name  of  B.  Gould  v.  York 
County  Mut.  Fire  Ins.  Co.  47  Me.  403.     1859. 

§  51.  A  misrepresentation  of  title,  in  the  application 
to  a  mutual  fire  insurance  company,  avoids  the  policy,  and 
a  subsequent  assignment  of  such  policy,  with  the  consent 
of  the  company,  adds  nothing  to  its  validity.  Merrill  v. 
Farmers'  <fe  Mechanics'  Mut.  Fire  Ins.  Co.  48  Me.  285. 
1860. 

§  52.  If  a  policy  of  insurance  issued  by  a  mutual  in- 
surance company  contains  a  provision  that  it  is  "  upon  the 
express  condition  that  the  application  upon  which  this 
policy  is  founded  shall  be  held  to  be  a  warranty  on  the 
part  of  the  insured,  and  as  absolutely  a  part  of  this  policy 
and  of  the  contract  of  this  insurance  as  if  it  was  actually 
written  in  and  incorporated  in  full,"  and  the  application 
contains  a  clause  inserted  after  the  printed  questions  by 
which  the  applicant  covenants  "  that  the  foregoing  is  a  full 
and  correct  description  and  statement  of  all  the  facts  in- 
quired for  or  material  in  reference  to  this  insurance," 
"  that  the  above  statements  are  substantially  true,"  and 
that  the  "  misrepresentation  or  suppression  of  any  facts  in- 
quired for  or  material  shall  destroy  his  claim  for  a  damage 
or  loss,"  the  applicant  must  be  held  to  warrant  that  all 
facts  inquired  for  are  correctly  given,  whether  material  or 
not.  In  such  case  a  policy  issued  to  the  "  Abbott  Wor- 
sted Co.,"  upon  an  application  signed  "Abbott  Worsted 
Co.,  J.  W.  A.,  Treas.,  will  be  rendered  invalid,  if  in  reply 
to  a  question  in  the  application,  "  Whose  is  the  property 
insured  ? "  the  answer  is,  "  Applicant's,"  wlien  in  fact  it 
belonged  solely  to  J.  W.  A.,  and  parol  proof  is  inadmissi- 
ble to  show  that  the  true  state  of  the  title  was  known  to 
the  agent  through  whom  the  insurance  was  effected,  if  the 
policy  contains  a  provision  that  every  such  agent  is  the 
agent  of  the  applicant  and  not  of  the  company.  Abbott 
V.  Sha\vumt  Mut.  Fire  Ins.  Co.  3  Allen,  Mass.  213.     1861. 

§  53.  Where  a  policy  granted  upon  several  parcels 
of  property,  each  sej^arately  valued,  requires  that  the 
insured  should  accurately  state  his  title,  a  failure  to  dis- 


TITLE. 


647 


<;lose  his  true  title  as  to  any  one  of  the  parcels  will  avoid 
the  policy  as  to  all  of  them.  Day  v.  Charter  Oak  Fire  & 
Marine  Ins.  Co.  51  Me.  91.      1862. 

§  54.  D.  received  a  deed,  absolute  in  form,  of  certain 
real  estate,  to  secure  him  against  loss  for  liabilities  he  had 
assumed  or  might  assume  for  the  grantor ;  and  afterwards 
gave  the  grantor  a  written  agreement  to  reconvey  upon 
being  indemnified.  The  property  was  insured  by  I),  with- 
out disclosing  the  nature  of  his  interest  therein.  One  of 
the  conditions  in  the  policy  was,  that  "  property  held  in 
trust,"  to  include  that  "  held  as  collateral  security,"  must 
be  insured  as  such.  Jleld,  in  an  action  on  the  policy,  that 
the  property  was  held  by  D.  as  collateral  security,  and 
therefore  "  held  in  trust,"  within  the  meaning  of  the  policy. 
Day  V.  Charter  Oak  Fire  &  Marine  Ins.  Co.  51  Me.  91. 
1862. 

§  55.  Where  an  insurance  of  the  interest  of  a  mort- 
gagee in  possession  was  renewed,  as  of  December  1,  1861, 
it  will  not  affect  the  policy  by  way  of  misrepresentation  of 
his  interest  in  the  subject  of  insurance,  that  on  December 
2,  1861,  he  took  a  release  of  the  equity  of  redemption 
from  the  assignors  of  the  mortgagor,  although  the  renewal 
was  procured  after  the  release;  nor  will  such  release  affect 
his  insurance  by  way  of  merging  his  mortgage,  when  ^is 
mortgage  is  at  the  time  pledged  to  a  bank  as  security  for 
his  endorsements,  and  his  interest  and  design  is  that  it 
should  be  kept  separi;te  from  the  equity.  The  clause  in 
a  policy,  that  if  the  property  insured  "  shall  be  sold  or 
conveyed,  this  policy  shall  be  null  and  void,"  refers  to  a 
sale  or  conveyance  of  it  by  the  insured,  determining  his 
interest  in  the  subject  of  insurance,  and  not  to  a  sale  or 
conveyance  to  him,  to  the  increase  of  his  interest  in  it. 
Heaton  v.  Manhattan  Fire  Ins.  Co.  7  R.  I.  502.     1863. 

§  56.  If  an  application  for  insurance  is  expressly 
made  a  part  of  the  policy,  and  the  policy  is  also  made  sub- 
ject to  the  conditions  and  limitations  expressed  in  the  by- 
laws annexed,  and  these  by-laws  provide  that  the  policy 
shall  be  void  if  the  application  shall  not  express  the  true 
title  of  the  assured  to  the  property  and  his  interest  there- 
in, an  answer  that  the  applicant  owns  the  property  to  be 


I 


648 


TITLE. 


insured,  in  reply  to  a  direct  inquiry  in  the  application- 
upon  that  subject,  when  in  fact  he  only  holds  a  bond  for 
a  deed,  will  avoid  the  policy.  So  an  answer  in  such  ap- 
plication that  the  property  is  encumbered  "for  $1,000 
with  other  property,"  in  reply  to  the  question,  "  Is  it  en- 
cumbered by  mortgage  or  otherwise?  If  so,  for  what 
sum  ? "  will  avoid  the  policy,  if  in  fact  there  is  a  mortgage 
for  $1,400  upon  the  property  insured  and  other  property. 
Falij  V.  Conway  Mut.  Fire  Ins.  Co.  7  Allen,  Mass.  46.. 
1863. 


57. 


The  condition  annexed  to  a  policy  of  insurance, 
and  forming  a  part  thereof,  required  that  applications  for 
insurance  should  specify  the  nature  of  the  applicant's 
title,  if  less  than  fee  simple ;  and  that  any  misstatement  or 
concealment  relative  to  this  and  other  requirements  should 
render  the  insurance  void.  B.,  in  an  application  for  insur- 
ance, represented  that  he  owned  the  property  by  virtue  of 
an  article  of  agreement  Avith  C.  The  agreement,  as  proved, 
was  for  the  sale  of  a  village  lot  by  C.  to  B.,  without  any 
exception  or  reservation,  for  a  specified  sum  to  be  paid  by 
B.  The  dwelling-house  was  on  the  lot  at  the  date  of  the 
agreement,  and  when  the  insurance  was  applied  for. 
There  was  no  proof  that  B.  represented,  in  his  application, 
that  he  owned  the  dwelling-house  as  a  chattel  not  affixed 
to  the  soil.  Ileld^  that  the  contract  of  insurance  related 
solely  to  the  interest  which  B.  had  in  the  building,  as  the 
vendee  in  possession  of  the  soil  on  which  it  stood,  under 
the  contract  with  C. ;  and  that  the  judge  on  the  trial 
properly  overruled  B.'s  offer  to  prove  that  the  building 
was  a  chattel  not  affixed  to  the  freehold,  and  that  at  the 
time  of  the  insurance  he  was  the  owner  of  it,  and  continued 
to  be  the  owner  up  to  the  time  of  the  fire.  Th<^  statement 
in  the  application,  respecting  the  nature  of  B.'s  title,  was 
a  warranty ;  and  it  beinc^  untrue,  the  policy  did  not  take 
effect.  Birmingham  v.  Empire  Ins.  Co.  42  Barb.  N.  Y. 
457.     1864. 

§  58.  An  omission  to  disclose,  in  an  application  for 
insurance  on  a  building,  a  written  agreement  by  the  ap- 
plicant to  convey  it  in  consideration  of  a  certain  sum  of 
money  to  be  paid  within  a  fixed  time,  or  to  disclose  the 
fact  that  the  greater  part  of  the  money  orally  agreed  upon 


i 


i 


C 


TITLE. 


64d 


pplication- 

bond  for 

such  ap- 

br  $1,000 

"  Is  it  en- 

for  what 

mortgage 

property. 

Mass.  46.. 

insurance, 
ations  for 
Pl^licant's 
tement  or 
its  should 
for  insur- 
'  virtue  of 
IS  proved, 
hout  any 
e  paid  by 
te  of  the 
plied   for. 
>plication, 
ot  affixed 
le  related 
ig,  as  the 
od,  under 
the  trial 
building 
at  at  the 
continued 
statement 
title,  was 
not  take 
b.  K  Y. 

ation  for 
^  the  ap- 
1  sum  of 
close  the 
eed  upon 


as  the  consideration  for  the  conveyance  was  paid  before 
the  written  agreement  was  entered  into,  will  not  avoid  or 
prevent  the  recovery  of  the  full  amount  insured  by  a 
policv  of  insurance  which  provides  that  it  is  issued  on 
condition  that  the  application  contains  a  just,  full  and  true 
exposition  of  all  the  facts  and  circumstances  in  regard  to 
the  condition,  situation,  value  and  risk  of  the  property. 
Davis  V.  Quincy  Mut.  Fire  Ins.  Co.  10  Allen,  Mass.  113. 
1865. 

§  50.  A  policy  contained  a  clause  to  the  effect,  "  that 
if  the  interest  in  the  property  to  be  insured  be  a  leasehold,, 
trustee,  mortgagee  or  reversionary  interest,  or  other  inter- 
est not  absolute,  it  must  be  so  represented  to  the  company 
and  expressed  in  the  policy  in  writing,  othtTwise  the  in- 
surance shall  be  void."  The  plaintiffs  insured  the  prop- 
erty as  owners.  Their  title  was  a  purchase  at  a  sale 
under  the  foreclosure  of  a  mortgage  in  the  State  of  Illi- 
nois, by  the  laws  of  which  the  mortgagor  had  fifteen 
months  after  sale  within  which  to  redeem.  Before  the  exe- 
cution of  the  deed  to  the  plaintiffs  the  property  insured 
was  destroyed  by  fire,  and  subsequently  the  plaintifts  re- 
ceived a  deed  to  the  property.  Held,  that  the  terms  of 
the  policy  referred  not  to  the  nature  of  the  title,  whether 
legal  or  equitable,  but  to  the  nature  of  the  ownership  of 
the  property ;  and  further,  that  the  plaintiffs  having  sub- 
sequently acquired  the  legal  title  by  the  deed,  the  legal 
title  should  relate  back  and  take  effect  from  the  inception 
of  the  equitable  title  by  the  purchase  at  the  sale  under 
the  foreclosure,  so  that  the  plaintiffs  at  the  time  the  policy 
was  issued  were  the  owners  of  the  property,  holding  the 

~     "     '  V.  Lamar  Fire  Ins.  Co.  40  Mo. 


legal 

13.     1867. 


Gayk 


§  60.  Premises  were  devised  to  the  widow  for  life  or 
until  she  remarried,  remainder  to  the  son.  The  widow 
who  had  insured  the  buildings  thereon,  upon  a  loss  ap- 
plied the  insurance  money  with  funds  of  her  own  to  build- 
ing again.  Afterwards  she  remarried ;  then  made  a  verbal 
agreement  with  her  son  by  which  she  was  to  have  the 
premises  in  exchange  for  others,  but  this  arrangement  was 
not  carried  out  until  after  bringing  this  suit.  The  defend- 
ant had  insured  the  premicis ;  tbt  application  stated  that 


650 


TITLE. 


l!    I 


the  plaintiff  "  owned  the  property — no  incumbrance."  The 
policy  made  the  application  a  part  of  it,  required  specifi- 
cation of  title  if  less  than  a  fee  simple ;  and  thatauy  misstate- 
ment or  concealment  should  avoid  the  insurance,  and  the 
preliminary  proofs,  in  which  false  swearing  was  to  cause 
forfeiture,  said  plaintiff  owned  fee.  Held,  the  statement 
of  title  is  a  warranty ;  being  such,  the  materiality  of  as- 
sured's  title  to  the  risk,  cannot  be  inquired  into ;  it  must  be 
literally  fulfilled,  and  its  breach  avoided  the  policy.  That  the 
agent  wrote  the  application,  did  not  read  it  over  to  assured, 
and  that  therefore  she  did  not  know  the  statement  of  her 
interest  was  incorrect,  the  agent  having  no  information  on 
the  subject,  does  not  make  the  company  responsible  for 
the  misstatement.  Pierce  v.  Empire  Ins.  Co.  62  Barb. 
636.     1862. 

§  61.  An  answer  denying  that  the  plaintiff  was  in- 
terested as  alleged,  is  not  an  admission  that  the  plaintiff 
had  on  hand  the  quantity  of  wheat  pleaded.  Insurance  on  so 
much  wheat  subject  to  assured's  order  in  a  warehouse. 
Ileldj  it  was  not  necessary  to  prove  that  the  identical  wheat 
was  destroyed,  but,  that  the  quantity  claimed  for  must 
have  been  in  the  warehoiise  under  control  of  the  assured's 
vendor,  during  the  whole  lyeriod  between  the  insurance  and 
the  fire ;  and  although  his  vendor  has  fraudulently  given 
receipts  for  more  wheat  than  he  really  had,  yet  some  of 
these  having  been  extinguished,  so  that  the  quantity  claimed 
by  plaintiff  was  at  all  times  in  storage,  the  vendor's 
fraud  on  other  parties  could  not  be  set  up  in  answer  to 
plaintiff's  claim.  Clark  v.  AVestern  Ass.  Co.  25  U.  C,  Q. 
B.  209.     1865. 

§  62.  A  purchaser  under  a  contract  of  purchase,  of 
which  part  of  the  purchase  money  is  unpaid,  may  describe 
himself  as  owner,  and  insure  to  the  full  value  of  the  build- 
ings. Laidlaw  v.  Liverpool,  London,  cfee.  Ins.  Co.  13 
Grant  Ch.  377.     1867. 

§  63.  The  application,  made  part  of  the  contract,  pro- 
vided that  it  was  a  just,  full  and  true  exposition  of  all  the 
facts,  «fec.,  and  the  interest  of  the  assured  therein  |  *  *  * 
that  if  any  material  fact  should  not  he  fairly  represented, 
the  policy  should  be  void.    The  assured  described  the  sub- 


TnLE. 


651 


ject  as  "  all  the  property  of  the  assured,"  and  to  an  in- 
quiry whether  he  was  owner,  mortgagee  or  lessee,  and 
whether  encumbered,  answered, "  owner,  no  encumbrance." 
It  appeared  the  plaintiff  owned  the  buildings,  but  had  only 
a  leasehold  in  the  ground  for  six  years  (how  much  of  which 
had  expired  is  not  stated),  with  right  to  remove  all  erec- 
tions. Held^  that  the  word  "  owner  "  has  no  definite  mean- 
ing, and  if  plaintiff  used  it  in  good  faith  he  ought  not  to 
suffer.  And  the  question  whether  he  fairly  represented 
the  fact  should  have  been  left  to  the  jury,  to  judge  of 
which  the  plaintiff  might  show  surrounding  facts,  and  that 
the  agent  who  drew  up  the  application  had  been  informed, 
with  the  plaintiff's  knowledge,  of  the  state  of  the  title. 
Hopkins  v.  Provincial  Ins.  Co.  18  U.  C,  C.  P.  74.     1868. 

§  64.  No  written  application  was  required.  The 
policy  was  conditioned  to  be  void  for  any  misrepresenta- 
tion, and  that  "if  the  interest  of  assured  be  any  other  than 
the  entire  unconditional  and  sole  ownershiji,  *  *  *  it 
must  be  so  represented  to  the  company,  and  so  expressed 
in  the  policy,  otherwise  the  policy  shall  be  void."  Plaint- 
iff only  owned  an  undivided  half  in  the  property,  and  this 
was  encumbered.  The  plaintiff'  had  explained  this  to  the 
agent  having  authority  to  draw  up  and  issue  policies,  who 
said,  "  it  would  make  no  dift'erence ; "  "  it  was  all  right." 
Held^  a  waiver  of  the  condition  amounting  to  an  estoppel 
in  pais,  upqn  the  company.  Franklin  v.  Atlantic  F.  Ins. 
Co.  42  Mo.  456.     1868. 

§  65.  "  If  assured's  interest  be  any  other  than  the  en- 
tire, absolute,  unconditional,  and  sole  ownership,  both  at 
law  and  in  equity,"  it  must  be  disclosed  and  described. 
If  the  assured  has  bought  and  partly  paid  for  the  prop- 
erty, is  in  possession,  and  there  is  no  lien  for  purchase 
money,  or  other  encumbrance,  though  it  has  not  been 
deeded  to  him,  the  ownership  required  is  satisfied.  Bon- 
ham  V.  Iowa  Central  Ins.  Co.  25  Iowa,  328.     1868. 

§  66.  The  fact  that  a  woman's  husband  will  have  a 
curtesy  in  her  estate,  does  not  render  her  title  other  than 
absolute  ownership,  so  as  to  be  required  to  be  set  forth  in 
the  policy,  a  clause  of  which  required  disclosure  if  the  interest 
of  the  asured  was  not  an  absolute  ownership.    A  trust  deed 


^, 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0 


I.I 


L^m    125 

|jo  ""*   Mil 


lU 

It 


140 


11.25  III  1.4 


—    6" 


■  2.0 


Photographic 

Sdences 

Corporation 


23  WIST  MAIN  STRUT 

WIMTIR,N.Y.  14SS0 

(71«)I73-4S03 


'^ 


652 


TITLE. 


had  been  made  to  one  Greenebaum.   Held^  a  writing  on  the 

Eolicy,  "  loss,  if  any,  payable  to  Greenebaum,  trustee,  as 
is  interest  may  appear,"  conveys  a  sufficient  disclosure  of 
all  the  facts.  Commercial  Ins.  Co.  v.  Spankneble,  52  111. 
53.     1869. 

§  67.  Where  corn  was  deposited  by  a  farmer  with  a 
miller,  to  be  stored  and  mixed  with  the  miller's  other 
stock,  subject  to  the  farmer's  right  to  demand  an  equal 
quantity ;  Held^  as  such  transaction  is  a  sale,  and  not  a 
bailment,  the  miller  can  recover  on  a  policy,  as  for  his  own 
property,  though  the  policy  requires  specific  insurance  or 
a  description  as  "  goods  held  in  trust,  and  on  commission," 
when  such  is  the  fact.  South  Australian  Ins.  Co.  v.  Kan- 
dell,  L.  K.  S.,  3  P.  C.  101.    1869. 

§  68.  Applicant  showed  the  agent  that  his  title  was 
^  b.  5id  for  a  deed,  on  which  a  small  balance  of  one  hun- 
dred dollars  was  yet  unpaid ;  the  agent  thereupon  filled  up 
!  .e  application,  saying  it  was  "  all  right,"  and  the  appli- 
cant signed  it  not  being  aware  that  the  answers  "fee 
simple '  and  "  no  encumbrances  "  were  in  it.  Held^  such 
expressions  in  the  application  may  be  regarded  as  the 
opinion  of  the  parties  as  to  the  practical  result  of  the  title 
bond,  and  an  agreement  to  treat  it  as  a  fee  simple  for  pur- 
poses of  insurance.  Combs  v.  Hannibal  Savings  <fe  Ins. 
Co.  43  Mo.  148.     1869. 

§  69.  Mortgagee  who  in  obtaining  insurance  upon  the 
premises,  not  being  interrogated,  did  not  disclose  his  in- 
terest ;  Held^  not  essential  to  disclose  interest  if  not  asked, 
so  long  as  there  is  an  insurable  interest ;  and  a  clause  that 
the  company  will  not  be  liable  "  for  loss  for  property 
owned  by  another,  unless  the  interest  of  such  other  be  stated 
in  the  policy  ;  "  Held^  did  not  require  a  disclosure  by  as- 
sured of  his  interest,  but  by  implication  excused  him  from 
so  doing.  Norwich  Fire  Ins.  Co.  v.  Boomer,  52  111.  442. 
1869. 

§  70.  Policy  to  be  void  if  the  insured's  interest  is  not 
"truly  stated"  therein,  and  if  his  interest  is  other  than  the 
entire  unconditional  and  sole  ownership  for  the  use  of  the 
assured,  it  must  be  so  represented.  The  assured's  interest 
was  that  of  purchaser  at  sneriflTs  8ale.  None  of  the  purchase 


TITLE. 


653 


imission. 


money  had  been  paid,  and  his  \  iie  had  dower  in  it  as 
widow  of  a  former  owner/ )ut  he  described  it  as  unencum- 
bered. Held^  policy  void.  Security  Ins.  Co.  v.  Bronger, 
6  Bush,  146.     1869. 

§  71.  A  condition  required  disclosure  if  the  interest  is 
a  leasehold  or  other  interest  not  absolute.  Held^  this 
means  an  estate  carved  out  of  and  less  than  the  fee  simple, 
or  determinable  on  any  event  or  condition;  not  vested.  As 
a  mortgagee's  interest  is  only  incidental  and  commensurate 
with  the  object  intended,  viz.,  a  security,  the  mortgagor 
still  holds  the  absolute  interest,  and  not  within  the  condition 
requiring  disclosure.  Washington  Fire  Ins.  Co.  et  al.  v. 
Kelly,  32  Md.  421.     1870. 

§  72.  The  assured,  in  possession  of  the  premises  under 
a  contract  of  purchase,  of  which  only  part  of  the  purchase 
money  was  paid,  answered  questions  in  his  application  as 
follows:  "Is  the  property  owned  and  operated  by  the 
applicant  ? " — "  Yes."  "  Is  any  other  person  interested  in 
the  property  ? " — "  No."  "  Encumbrance — is  there  any  on 
the  property? " — "Held  by  contract."  Held^  the  answers 
were  substantially  true,  and  there  was  no  breach  of  war- 
ranty in  that  respect.  Lorillard  Fire  Ins.  Co.  v.  McCul- 
ioch,  21  Ohio  St.  176.     1871. 

§  73.    Assured  had  described  himself  as  owner  of  the 
property,  and  that  it  was  unencumbered  except  by  the 
mortgage  to  the  plaintiflf,  who  became  assignee  of  the  policy 
afterwards,  when,  in  fact,  it  had  been  conveyed  on  sale 
for  delinquent  taxes.    Plaintiff  had  paid  the  taxes  at  as- 
sured's  request,  and  had  taken  a  deed  to  himself  without 
informing  assured,  who  had  afterward  repaid  the  taxes. 
It  was  alleged  in  reply  to  this  defense  that  the  tax  deed 
was  invalid  for  informality.    Held^  whether  it  were  good 
or  bad,  plaintiff  was  assured's  trustee,  and  the  assured, 
whether  ignorant  or  not  of  the  deed,  could  describe  him- 
self as  owner,  nor  is  the  tax  deed  an  encumbrance.    It  is 
not  error  in  the  court  to  refuse  to  allow  an  amendment  of 
the  answer  setting  up  judgment  liens,  because  these  being 
matters  of  record,  were  constructively  known  to  defendant, 
unless  an  offer  to  show  actual  ignorance  of  them  is  shown. 
Newman  v.  Springfield  Fire  <&  Marine  Ins.  Co.  17  Minn. 
123.     1871. 


654 


TITLE. 


§  74.  Whether  the  plaintiff,  the  assignee  of  the  policy, 
has  also  an  interest  in  the  premises,  is  a  fact  to  be  deter- 
mined by  the  jury  under  proper  instructions.  SembUy 
that  a  clause  requirmg  disclosure  if  the  interest  is  a  lease- 
hold interest,  does  not  apply  when  the  assured  owns  the 
building,  but  has  either  no  interest  in  the  lot,  or  only  as 
assignee  of  a  lease.  Mitchell  v.  Home  Ins.  Co.  32  Iowa, 
421.     1871. 

§  7 5.  Assured  held  land  under  a  parol  contract  to  have 
the  title,  and  was  performing  the  consideration  therefor.  He 
had  erected  the  insured  budding  thereon.  The  policy  de- 
scribed it  as  "  owned  and  occupied  by  assured  as  a  store." 
Held,  that  the  Code,  requiring  the  insured  to  haye  "  some 
interest,  *  *  *  and  such  as  he  represented  himself  to 
have.  A  slight  or  contingent  interest  is  sufficient  whether 
legal  or  equitable,"  is  satisfied  both  as  to  insurable  interest 
and  to  representation.  Southern  Ins.  &  Trust  Co.  v  Lewis 
<fe  Bros.  42  Ga.  587.     1871. 

§  76.  A  partnership  insured  the  mill,  describing  it  as 
"  theirs,"  when  in  reality  it  belonged  to  one  of  the  firm, 
and  put  in  as  his  share  of  the  capital,  and  never  conveyed 
to  the  firm  or  in  trust  for  them,  and  they  only  had  there- 
fore a  temporary  use  in  it.  Held,  a  material  misrepresen- 
tation, avoiding  the  policy  ah  inito,  under  the  condition 
requiring  disclosure  if  the  interest  was  other  than  sole  ab- 
solute, £c.  That  therefore  the  firm,  having  no  interest 
therein,  could  not  assign  the  policy  to  a  member  of  the 
firm,  being  also  vendee  of  the  mill,  and  a  void  policy  was 
not  rendered  valid  by  the  mere  assent  of  the  insurers  to 
such  a8sis:nment,  which  was  not  meant  to  enlarge  their 
liability.  tJitizens'  Fire  Ins.  «fec.  Co.  v.  DoU,  35  Md.  89.  1871. 

See  Agent,  ?  00.  Concenlment,  25.  Encumbrance,  1,  56.  Entirety  and  Divi- 
Bibility  of  Policy,  8.  Estoppel,  11.  Goods  in  Trust  or  on  Commission,  17. 
Insurable  Interest,  6,  41,  60.  Parol  Contract,  26.  Pleading  and  Practice, 
17,  80,  45.  Preliminary  Proofs,  6.  Renewal  of  Policy,  14.  Subrogation, 
20.     Warranty  and  Representation,  33. 


n 


M^ 


TRANSFER  OF  STOCK, 

§  1.  In  an  action  by  the  assignees  of  certain  shares 
of  stock,  for  damages  for  the  refusal  of  the  corporation  to 
recognize  the  transfer  on  its  books,  the  corporation, 
immediately  after  such  refusal,  having  levied  an  execution 
on  the  same  shares ;  Held,  1st,  that  the  assignees  had  a 
right  to  buy  the  shares,  and  on  giving  notice  to  the  com- 
pany to  have  the  transfer  recognized,  maugre  a  by-law,  re- 
quiring the  assent  of  the  president  of  the  company  to  be 
first  given  ;  2d,  that  the  indebtedness  of  the  assignors  did 
not  justify  a  refusal  of  such  recognition;  3d,  that  the 
plaintiffs  were  entitled  to  recover  as  damages  the  value  of 
the  shares  at  the  time  of  refusal  to  transfer,  with  interest 
from  that  time.  Sergent  v.  Franklin  Ins.  Co.,  8  Pick. 
Mass.  90.     1829. 

§  2.  A.  purchased  stock  of  an  insurance  company  for 
B.  The  transfer  was  made  to  A.,  "  subject  to  the  pay- 
ments of  the  installments  due  on  the  shares,"  and  A.  sub- 
scribed the  transfer,  "  accepting  the  stock  on  the  condi- 
tions named  in  the  transfer."  The  by-laws  required  the 
transferee  to  assume  this  liability ;  and  it  was  in  conse- 
quence of  B.'s  absence  that  the  transfer  was  made  in  A.'s 
name>  at  the  suggestion  of  the  secretary  of  the  company. 
Held,  that  A.  was  personally  lictble  to  the  company  for  the 
unpaid  installments.  Long  v.  Pennsylvania  Ins.  Co.  6 
Penn.  St.  421.     1847. 

§  3.  Where  a  by-law  required  the  consent  of  the 
directors  "to  the  transfer  of  stock  by  a  stockholder  in- 
debted to  the  company,"  but,  in  the  practice  of  the  com- 
pany, such  cases  were  nev  er  brought  before  the  board ;  a 
transfer  by  such  a  stockholder,  made  without  that  consent, 
but  according  to  the  usage  of  the  company,  is  good  against 
the  company.  Chambersburg  Ins.  Co.  v.  Smith,  11  Penn. 
St.  120.     1849. 

§  4.  A  stockholder  in  a  company  empov'ered  the 
secretary  in  writing  to  transfer  certain  stock,  in  pursu- 
ance of  which  the  secretary  entered  on  the  books,  "  that 


I 


656 


TWO-THIKDS   OR   THREE-FOURTHS   CLAUSE. 


the  stock  was  transferred,  see  paper  filed,"  which  paper 
filed,  being  the  power,  he  wafered  to  the  book,  and  attested 
the  entry  of  transfer  as  secretary,  signing  no  transfer  as 
attorney.  Held.,  that  this  was  a  substantial  compliance 
with  the  by-law,  which  required  the  transfer  to  be  made 
"  in  the  books  of  the  company,  and  to  be  attested  by  the 
secretary."  Chambersburg  Ins.  Co.  v.  Smith,  11  Penn.  St. 
120.     1849. 


TWO-THIRDS  OR  THREE-FOURTHS  CLAUSE. 

§  1.  The  act  of  incorporation  limited  the  insurance  to 
be  made  to  three-fourths  of  the  value  of  the  property;  and 
the  by-laws  made  it  the  dutj  of  the  president,  alone,  or 
jointly  with  some  of  the  directors,  to  examirie  buildings 
oflfered  for  insurance,  and  de  rmine  the  amount  to  be 
underwritten  thereon.  Held.,  cuat  when  a  valuation  was 
deliberately  made  by  mutual  agreement,  as  a  part  of  the 
original  negotiation,  such  valuation  was,  in  the  absence  of 
all  fraud,  collusion  and  misrepresentation,  the  best  evidence 
of  the  actual  value  of  tho  premises  insured ;  and  was  bind- 
ing on  the  company.  Fuller  v.  Boston  Mut.  Fire  Ins.  Co. 
4  Met.  Mass.  206.     1842. 

§  2.  A  company  was  limited  by  its  charter  and  by- 
laws to  an  insurance  of  three-fourths  of  the  value  of  the 
property.  Application  valued  property  at  $4,000,  and 
policy  was  written  for  $3,500,  A  loss  occurred,  and  $3,000 
was  paid.  Held.,  in  an  action  for  the  balance  of  $500,  that 
the  company  was  only  liable  for  three-fourths  of  the  value 
of  the  properey,  as  fixed  by  the  application,  and  that  as- 
sured could  not  introduce  evidence,  dehors  the  policy,  to 
show  that  there  was  intended  an  insurance  of  $3,000  on 
the  property  described,  and  $500  on  other  property. 
Holmes  v.  Cnarleston  Mut.  Fire  Ins.  Co.  10  Met.  Mass.  211. 
1845. 

§  3.    Where  the  charter  of  a  mutual  insurance  com- 


TWO-THIRDS    OR    THREE-FOURMIS   CLAUSE. 


657 


pany  limited  them  to  an  insurance  of  only  three-fourths  the 
value  of  the  property,  and  a  by-law  reserved  the  right  to 
have  another  estimate  made  of  the  value  of  the  property 
at  the  time  of  the  loss,  without  regard  to  the  valuation  in 
the  policy ;  Held^  that  recovery  by  the  assured  must  be 
limited  to  three-fourths  the  value  of  the  property,  as  found 
by  the  jury,  at  the  time  of  the  loss,  althouj^h  the  whole 
actual  loss  exceeded  the  amount  insured,  tost  v.  Hamp- 
shire Mut.  Fire  Ins.  Co.,  12  Met.  Mass.  555.     1847. 

§  4.  Where  application  was  referred  to  and  made  part 
of  the  contract,  and  provided  that  the  company  should  only 
"  be  obliged  to  pay  as  if  they  had  insured  two-thirds  of 
the  actual  cash  value  of  the  said  property,  anything  in  the 
policy  or  application  to  the  contrary  notwithstanding;" 
Held^  that  a  recovery  for  loss  must  be  in  accordance  with 
the  condition ;  and  that  instruction  to  the  jury,  therefore, 
that  assured  might  recover  the  fall  value  of  property  de- 
stroyed, was  erroneous.  Egan  v.  Mut.  Ins.  Co.  of  Albany, 
5  Denio,  N.  Y.  326.     1848. 

§  5.  If  a  company,  by  its  charter,  is  prohibited  from 
insuring  more  than  two-thirds  the  value  of  any  property, 
and  yet  voluntarily,  and  without  fraud  or  misrepresenta- 
tion, insures  more,  the  policy  is  not  thereby  made  void. 
Williams  v.  New  England  Mut.  Ins.  Co.  31  Me.  219.  1850. 

§  6.  Where  charter  m  a  mutual  company  provided, 
that  the  company  "  should  not  insure  to  an  amount  greater 
than  two-thirds  of  the  value  of  the  property,"  and  at  time 
of  loss,  the  defendant's  policy,  together  with  another  policy 
on  the  same  property,  was  in  excess  of  the  two-thirds  value, 
as  found  by  the  jury ;  Held^  that  the  company  was  only 
liable  for  their  ratable  proportion  of  the  amount  of  such 
two-thirds,  as  found  by  the  jury.  Goodall  v.  New  England 
Fire  Ins.  Co.  5  Fost.  N.  H.  169.     1852. 

§  7.  The  company  was  limited  by  its  charter  to  an 
insurance  of  not  over  three-fourths  the  value  of  the  prop- 
erty. The  assured  represented  the  value  of  the  buildings 
as  being  $775,  and  upon  such  representation  the  company 
insured  $525.  At  the  time  of  the  loss,  and  upon  trial  of 
the  case,  the  evidence  went  to  prove  that  the  value  of  the 
buildings  insured  was  less  than  $525 ;  the  house  having 

43 


658 


TWO-THIRDS    OR    THREE-FOURTHS   CLAUSE. 


been  wholly  destroyed ;  Held^  that  the  best  evidence  of 
value  was  the  mutual  agreement  between  the  parties,  and 
unless  the  company  could  show  fraua,  collusion  or  mis- 
representation in  the  fixing  of  such  value,  they  must  pay 
the  sura  of  $525  insured.  Philips  v.  Merrimack  Mut.  Ins. 
Co.  10  Cush.  MasK.  350.     1852. 

§  8.  Insurance  for  $1,400,  was  made  on  stock  of 
goods  valued  in  the  application  at  $3,000.  At  the  time 
of  the  loss,  the  value  of  the  goods  was  but  $1,680.  The 
charter  and  by-laws  of  the  company  formed  a  part  of  the 
policy,  and  the  contract  was  made,  having  them  for  its 
basis.  In  the  charter  and  by-laws  there  was  no  express 
provision  for  a  re-valuation  at  time  of  loss ;  but  by  the 
fifth  section  of  the  charter,  it  was  provided  that  the 
directors  should  determine  the  sum  to  be  insured  "not 
exceeding  one-half  the  value  of  personal  property."  The 
by-laws  provided  that  in  case  of  loss  the  assured  should 
deliver  to  the  secretary  of  the  company  a  particular 
account,  <fec.,  "and  the  value  of  the  property,  at  the  time 
of  the  loss;"  and  as  soon  thereafter  as  may  be,  the 
directors  should  determine  the  amount  thereof.  Held^ 
that  under  these  provisions  of  the  charter  and  by-laws, 
And  in  an  insurance  upon  stock  of  goods,  constantly  fluc- 
tuating, the  valuation  in  the  application  was  not  conclusive 
upon  the  company ;  but  that  they  might  make  a  re-valua- 
tion at  time  of  loss ;  and  that,  consequently,  they  were 
only  liable  for  the  one-half  of  $1,680,  the  value  of  the 

f;oods  at  time  of  the  fire.     Atwood  v.  Union  Mut.  Fire 
ns.  €o.  8  Fost.  N.  H.  234.     1854. 

§  "O.  A  by-law  of  a  mutual  insurance  company  pro- 
vided, "  that  in  case  of  loss  by  fire,  the  company  will  in  no 
case  pay  more  than  two-thirds  on  personal  property,  and 
three-fourths  on  real  estate,  of  the  actual  cash  value  of  the 
property  at  risk  at  the  time  of  the  loss."  Held^  that  the 
loss  must,  be  determined  ])y  the  value  of  the  property  at 
the  time  of  the  fire,  independent  of  its  value  at  the  time 
of  the  insurance.  Huckins  v.  People's  Mut.  Fire  Ins.  Co. 
11  Fost.  N.  H.  238.     1855. 

§  10,  At  head  of  the  application  was  a  memorandum 
that  no  more  than  one-half  the  value  of  personal  property 


TW0THIRD9    OB    THREE-FOURTHS   CLAUSE. 


659 


should  be  insured.  The  charter  limited  insurance  to  three- 
fourths  the  actual  value  of  real  estate,  and  the  by-laws  pro- 
vided that  the  company  would  in  no  case  pay  more  than 
two-thirds  of  the  actual  value  of  personal  property  at  risk, 
at  the  time  of  the  loss.  Insured  valued  his  goods  at 
$2,000,  and  obtained  an  insurance  of  $1,500  thereon. 
Held^  that  the  memorandum  at  top  of  the  application  was 
not  embraced  within  the  assured's  signature,  and  if  it  were, 
that  the  charter  and  by-laws  controlled  such  application ; 
and  that  if  assured  had  goods  on  hand  at  the  time  of  the 
fire  to  the  amount  of  $2,250,  he  might  recover  $1,500  in- 
sured, if  that  amount  had  been  destroyed  by  tire.  Huckins 
V.  People's  Mut.  Fire  Ins.  Co.  11  Fost.  N.  H.  238.     1855. 

§  11.  A  by-law,  prohibiting  insurance  to  more  than 
two-thirds  of  the  value  of  the  property,  is  directory  to  the 
officers  of  the  company;  and  an  over-estimate,  by  the 
agent,  will  not  avoid  the  policy,  unless  the  insured  has 
taken  a  fraudulent  part  in  it.  Cumberland  Valley  Mut. 
Protection  Co.  v.  Schell,  29  Penn.  St.  31.     1857. 

§  12.  Insurance  was  $2,500  on  stock  of  goods.  The 
policy  provided  that  the  company  would  "  settle  and  pay 
unto  the  said  assured,  all  losses  or  damage,  not  exceeding, 
in  the  whole,  the  said  sum  aforesaid,  which  shall  or  may 
happen  to  the  aforesaid  property,"  «fec.,  and  that  "  the  said 
losses  or  damage  be  estimated  according  to  the  true  and 
actual  value  of  the  property  at  the  time  the  same  shall 
happen,  and  be  paid  at  the  rate  of  two-thirds  its  actual 
cash  value,"  <fec.  The  company  claimed  that  they  were 
only  liable  to  pay  two-thirds  of  the  actual  loss.  Heldy 
that  the  proper  construction  of  the  two  clauses  above  cited 
was,  that  the  company  should  pay  two-thirds  of  the  actual 
value  of  the  property  on  hand  at  the  time  of  the  fire,  not 
exceeding  the  sum  insured,  and  that  assured  mi^ht  there- 
fore recover  the  entire  sum  insured  and  lost,  if  it  did  not 
exceed  two-thirds  of  the  value  of  the  property  on  hand  at 
the  time  of  the  fire.  Ashland  Mut.  Fire  Ins.  Co.  v.  Hou- 
singer,  10  Ohio  St.  10.     1859. 

§  13.  Under  a  policy  of  insurance  for  $2,000  on  prop- 
erty insured  elsewhere  for  $3,000,  which  provides  that 
"  when  property  is  insured  by  this  company  solely,  three- 


1 


III 


ill 


660 


TWO-THIRDS    OR    THREE-FOURTHS   CLAUSE. 


fourths  only  of  the  value  will  be  taken,  and  in  case  of  loss 
this  company  will  be  liable  to  pay  three-fourths  only  of 
the  value  at  the  time  of  the  loss,  and  that,  "  in  case  of  loss 
or  damage  of  property  upon  which  double  insurance  sub- 
sists, the  company  shall  be  liable  to  pay  only  such  propor- 
tion thereof  as  the  sum  insured  by  tnis  company  bears  to 
the  whole  amount  insured  thereon,  such  amount  not  to  ex- 
ceed three-fourths  of  the  actual  value  of  the  property  at 
the  time  of  the  loss,"  the  underwriters  are  not  liable  for 
more  than  two-fifths  of  uiree-fourths  of  the  value  of  the 

Sroperty.    Haley  v.  Dorchester  Mut.  Fire  Ins.  Co.  12  Gray, 
[ass.  545.     1859. 

§  14.  Where  the  interest  of  insured  was  that  of  a 
mortgagee,  it  was  Held^  that  he  was  not  limited  to  the  re- 
coveiy  of  two-thirds  of  the  mortgage  interest,  by  the  stipu- 
lation that  the  recovery  should  not  exceed  two-thirds  the 
value  of  the  property,  but  was  entitled  to  the  whole  sum 
insured,  if  it  did  not  exceed  his  mortgage  interest,  nor  two- 
thirds  the  actual  value  of  the  property.  Sanders  v.  Hills- 
borough Ins.  Co.  44  N.  H.  238.     1862. 

§  15.  Where  a  policy  of  insurance  forces  the  value  of 
the  property  insured,  and  contains  a  condition  not  to  in- 
sure more  than  two- thirds  of  this  value,  it  is  an  undertak- 
ing on  the  part  of  the  insured  which,  if  broken,  will  pre- 
vent a  recovery  on  the  policy,  unless  the  company  were  in- 
formed of  the  over-insurance  and  waived  the  forfeiture. 
Lycoming  Ins.  Co.  v.  Mitchell,  48  Penn.  St.  368.     1^64. 

§  16.  A  breach  of  a  covenant  in  a  policy,  not  to  insure 
beyond  two-thirds  of  the  estimated  value,  is  a  forfeiture  of 
the  policy.  Mitchell  v.  LycOmiug  Mut.  Ins.  Co.  51  Penn. 
St.  402.     1865. 

§  17.  A  valued  policy,  viz,  of  $1,000  on  tannerv,&c., 
|M*omised  payment  of  all  losses  not  exceeding  said  sum. 
The  application,  which  was  made  part  of  it,  valued  the  prop- 
erty at  $1,000,  which  was  said  to  be  two-thirds  the  value, 
agreed  that  the  defendants  should  only  be  liable  as  if  they 
had  insured  two-thirds  of  the  actual  value,  anything  in 
the  application  or  policy  notwithstanding.  The  jury 
having  found  the  value  to  be  $1,050,  the  plaintiff  can  re- 


TWO-THIRDS  OR  THREE-FOURTHS  CLAUSE. 


661 


xjover  but  tvro-thirds  of  that  sum.     Williamson  r.  Gore 
Dist.  Mut.  F.  Ins.  Co.  26  U.  C,  Q.  B.  145.    1866. 

§  18.  A  policy  on  several  subjects  in  separate  amounts 
provided  that  the  company  should  be  liable  for  two-thirds 
of  such  loss  as  shall  happen  thereto,  amounting  to  no  more 
in  the  whole  than  the  aggregate  of  the  amounts  insured,  and 
to  no  more  on  any  of  the  different  subjects  than  two-thirds 
its  cash  value,  not  excee^^n  g  on  each  amount  the  sum  it  is 
insured  for.  Held,  a  separate  insurance  on  each  subject, 
and  the  company  is  liable  only  for  two-thirds  of  the  loss 
on  each,  althougn  the  loss  on  some  is  less  than  the  amount 
for  which  they  are  insured,  and  although  the  whole  loss 
is  less  than  the  aggregate  amount  insured.  King  v.  Prince 
Edw.  Co.  Mut.  Ins.  Co.  19  U.  C,  C.  P.  134.    1868. 

§  19.  The  aggregate  amount  of  insurance  not  to  ex- 
ceed "  two-thirds  of  the  estimated  cash  value."  This  being 
a  sum  concurred  in  at  the  time  of  insurance  must  be  so 
taken  without  reference  to  subsequent  additions  increasing 
the  actual  cash  value,  and  further  insurance  elsewhere  ob- 
tained after  the  increase  of  value  avoids  the  first  policies. 
Elliott  V.  Lycoming  Co.  Mut.  Ins.  Co.  66  Pa.  St.  22.    1870. 

§  ?;0.  Conditions  in  a  policy  :  1st,  In  case  of  total  loss 
the  company  is  not  to  pay  more  than  two-thirds  the 
actual  value  of  the  building  at  the  time  of  loss,  nor  more 
than  one-half  of  the.  value  of  the  personal  property.  "  2d, 
Partial  losses  are  paid  in  fall,  not  exceeding  the  amount 
insured,  provided  the  insured  has  on  hand  the  lowest 
amount  stated  in  the  application."  The  amount  of  goods 
to  be  kept  was  stated  in  the  application  as  of  the  value  of 
$3,000.  The  loss  was  $3,859,  there  being  $70  worth 
of  property  saved.  Held,  the  words,  "«^  the  time  of  loss" 
in  the  first  clause,  referred  to  the  personal  property  as  well 
as  the  real.  That  although  the  literal  interpretation  of 
clauses  would  give  the  assured  his  full  amount  of  insur- 
ance, the  loss  being  a  partial  one,  vet  the  intent  of  the 
clause  being  that  the  insured  should  be  interested  in  a 
certain  proportion  of  the  loss,  and  that  he  was  not  intended 
to  be  entitled  to  a  greater  recovery  in  partial  than  total  loss, 
these  words,  "total"  and  "partial,  must  be  construed 
accordingly.  Singleton  v.  Boone  Co.  Home  Mut.  Ins.  Co. 
46  Mo.  250.     1870. 


662 


USAGE. 


23.  A  stipulation  in  the  policy  that  "  this  company 
shall  in  no  event  be  liable  beyond  three-fourths  of  the 
actual  cash  value  at  the  time  of  loss  "  controls  the  valua- 
tion in  the  application,  and  it  is  not  binding.  Brown  v. 
Quincy  Mut.  F.  Ins.  Co.  105  Mass.  396.    1870. 

I  22.  Insurance  in  a  mutual  company  for  a  sum 
"  being  not  more  than  three-fourths  of  the  value  as  stated 
in  the  application"  is  a  conclusive  valuation.  And  a 
further  clause  that  in  case  of  other  insurance  "  this  com- 
pany shall  not  be  held  to  pay  any  greater  portion  of  the 
loss  than  the  amount  hereby  insured  shall  bear  to  the 
whole  amount  insured ;  such  amount  in  all  not  to  exceed 
three-fourths  of  the  actual  value  of  said  property  at  the 
time  of  loss."  Held^  this  proviso  applied  to  the  whole 
amount  of  insurance  when  there  should  be  other  insurances, 
and  there  being  no  other  policy,  the  valuation  was  con- 
clusive in  the  absence  of  fraud.  Luce  v.  Dorchester  Mut. 
Fire  Ins.  Co.  105  Mass.  247.     1870. 


See  Contnbution,  §  11.     Damapres,  6, 11.    Estoppel,    4. 
ance,  84.    What  Property  ie  Covered  by  the  Policy,  25. 


Other  Insur- 


USAGE. 

§  1.  Proof  of  usage  among  commission  merchants,  to 
insure  the  goods  consigned  to  them,  is  admissible.  De 
Forest  v.  Fulton  Fire  Ins.  Co.  1  Hall,  N.  Y.  84.     1828. 

§  2.  Where  buildings  were  insured  at  Mobile,  Ala- 
bama, by  a  company  in  New  York,  and  subsequent  to 
such  insurance,  other  buildings  were  erected  adjoining  the 
one  insured,  and  the  company  offered  to  prove  a  usage  at 
New  York,  that  when  the  risk  was  increased  by  any  cir- 
cumstance, the  assured  muat  give  notice  thereof  to  the 
company,  who  were  then  to  have  the  option  of  continuing 
or  annulling  the  policy ;  Held^  that  evidence  of  such  usage 
was  not  admissible  for  two  reasons :  1st,  because  it  was 
local,  applying  only  to  insurance  on  property  in  the  city 


U8AGE. 


663 


of  New  York ;  and  2cl,  that  if  it  were  a  general  usage,  it 
could  not  be  given  in  evidence,  to  alter  the  legal  operation 
and  eflfect  of  the  policy.  Stebbins  v.  Globe  Ins.  Co.  2 
Hall,  N.  Y.  632.     1829. 

§  3.  The  insurance  was  on  a  stock  of  goods,  described 
as  being  contained  in  a  "  two-story  frame  house,  filled  in 
with  brick."  Held^  that  assureu  might  introduce  evidence 
to  show  a  usage;  as  between  assured  and  insurer,  to  con- 
sider a  house,  having  a  brick  wall  on  one  side,  and  a  house 
filled  in  with  brick  on  the  other,  and  filled  in  with  brick 
in  front  and  rear,  as  falling  within  the  description  of  "  a 
house  filled  in  with  brick."  Fowler  v.  ^tna  Ins.  Co.  of 
New  York,  7  Wend.  N.  Y.  270.    1831. 

§  4.  A  policy  of  insurance  against  fire  upon  a  "  barque 
now  being  built "  in  the  port  of  Baltimore,  is  not  con- 
trolled in  its  operations  by  proof  of  usage  in  other  ports 
of  the  Union.  Such  usage  c^i.ld  not  be  considered  as  en- 
tering into  the  views  of  the  parties,  at  the  time  of  making 
the  contract.  Mason  v.  Franklin  Fne  Ins.  Co.  12  Gill  & 
Johns.  Md.  468.     1842. 

§  5.  In  an  action  on  a  policy  of  re-insurance,  which 
agreed  to  make  good  "  all  loss  or  damage  by  fire ; "  Held^ 
that  evidence  of  a  usage  among  insurers  in  the  city  of 
New  York,  for  re-insurers  not  to  pay  the  full  amount  named 
in  the  policy  of  re-iusurance,  but  only  a  sura  which  should 
be  in  tne  same  proportion  to  the  amount  of  the  property 
destroyed  as  the  policy  of  re-insurance  bore  to  the  original 
policy,  was  incompetent.  Hone  v.  Mutual  Safety  Ins.  Co. 
1  Sandf.  N.  Y.  137.  1847.  Affirmed,  2  Comst.  N.  Y. 
235.     1849. 

§  6.  Where  loss  was  occasioned  by  lightning ;  Held, 
that  the  usage  of  other  companies,  restricting  their  liabili- 
ties to  losses  occasioned  by  actual  burning  by  lightning, 
might  be  proved  to  show  that  the  general  usage  of  insur- 
ance companies  was  not  to  be  liable  for  damage  by  light- 
ning, unless  accompanied  by  burning.  Babcock  v.  Mont- 
gomery County  Mut.  Ins.  Co.  6  Barb.  N.  Y.  637.  1849. 
Affirmed,  4  Comst.  N.  Y.  326.     1850. 

§  7.    Insurers  are  assumed  to  know  the  usage  of  trade ; 


•  ^ 


I' 


664 


USAGE. 


and  when  they  use  a  term,  having  a  limited  meaning  in 
the  trade,  and  in  a  policy  to  one  engaged  in  that  trade,  or 
in  A  business  closely  connected  \ntn  it,  both  parties  must 
be  assumed  to  have  understood  the  term  in  the  sense  in 
which  the  trade  usually  understand  it.  Evidence  of  such 
usage  is  always  admissi')le.  Wall  v.  Howard  Ins.  Co.  14 
Barb.  N.  Y.  383.     1852., 

§  8.  The  evidence  of  a  director,  as  to  the  practice  of 
the  company  in  giving  consent  to  other  insurance,  is  im- 
material. The  practice  of  the  company,  so  far  as  within 
the  knowledjye  of  such  director,  could  not  bind  the  as- 
sured ;  to  be  binding,  the  practice  must  be  such  and  so 
known  to  the  parties  as  to  lead  to  the  belief  that  the  con- 
tract was  made  with  reference  to  it.  Goodall  v.  New 
England  Mut.  Fire  Ins.  Co.  5  Fost.  K  H.  169.     1852. 

§  9.  Assured,  in  his  application  for  insurance  on  a 
factory,  in  reply  to  the  question,  "  Are  there  casks  in  each 
loft  constantly  supplied  with  water?"  stated,  "There  is  in 
each  room,  casks  of  forty-two  gallons  each  kept  constantly 
full."  It  appeared  that  one  of  the  stories  of  the  factory 
was  partitioned  into  apartments,  and  that  there  was  not 
a  cask  in  each  apartment.  Evidence  was  held  to  be  ad- 
missible to  show  that  by  the  usage  of  manufacturers,  the 
word  "  room  "  designated  an  entire  loft,  whether  partitioned 
or  not.  Insurance  companies  in  dealing  with  sucn  manufac- 
turers, are  bound  by  such  usage,  and  the  legal  presump- 
tion is  that  they  have  knowledge  of  the  same.  Daniels  v. 
Hudson  River  Fire  Ins.  Co.  12  Cush.  Mass.  416.     1853. 

§  10.  In  an  action  upon  a  policy  of  insurance,  evi- 
dence of  a  local  custom  amongst  insurers,  not  communi- 
cated to  the  insured,  or  of  such  notoriety  as  to  afford  any 
presumption  of  knowledge  on  his  part,  is  not  admissible. 
Hartford  Protection  Ins.  Co.  v.  Harmer,  2  Ohio  St.  (22 
Ohio),  452.     1853. 

§  11.  To  recover  against  a  consignee  of  goods  which 
have  been  burnt  while  m  his  possession,  and  not  insured 
by  him,  it  must  be  made  to  appear  by  the  most  conclusive 
proof,  that  it  is  the  custom  for  commission  merchants  to 
msure  goods  consigned  to  them  for  sale,  unless  instructed 


USE    AND    OCCUPATION. 


665 


to   the  contrary. 


1855. 


Tonge  V.  Kennett,  10  La.  Ann.  800. 


§  12.  Where  to  an  inquiry  in  the  application  whether 
there  was  a  watchman  in  the  buUding  during  the  night, 
the  assured  answered,  "  There  is  a  watchman  nights,"  the 
reply  must  be  understood  to  mean  that  there  was  a  watch- 
man every  night.  The  language  used  is  to  be  interpreted 
according  to  its  popular  meaning;  and  cannot  be  con- 
trolled by  evidence  of  a  local  custom  as  to  keeping  watch- 
men in  such  buildings  on  Sunday  nights.  Ripley  v.  -^tna 
Ins.  Co.  30  N.  Y.  136.     1864. 

§  13.  Notwithstanding  the  charter  of  an  insurance 
company  requires  their  contracts  of  insurance  to  be  exe- 
cuted in  a  particular  mode,  yet  if  they  adopt  a  different 
mode,  and  receive  the  benefit  of  the  contract,  they  will  be 
bound  by  it.  N.  E.  Fire  &  M.  Ins.  Co.  v.  Schettler,  38 
m.  166.     1865. 

See  Agent,  §  68.  Damages,  17.  Evidence,  36,  49,  79.  Parol  Contract, 
14.  Parol  Evidence,  9.  Use  and  Occupation,  24.  Watchman,  3.  What 
Property  is  Covered  by  Policy,  13. 


USE  AND   OCCUPATION. 

§  1.  A  coffee  house  is  not  an  inn,  within  the  meaning 
of  a  policy  reciting  that  the  trade  of  inn-keeper  is  one  of 
the  double  hazardous  trades,  which  avoid  the  insurance, 
unless  specially  referred  to  and  premium  paii  accordingly. 
Doe  d.  Pitt  V.  Laming,  4  Camp.  N.  P.  73.     1814. 

§  2.  A  house  was  insured  for  $1,200 ;  and  after  death 
of  assured,  but  during  term  of  policy,  the  administrators 
proceeded  to  repair  the  house  thoroughly ;  in  the  course 
of  which  repair,  being  untenanted  except  by  the  workmen 
-with  their  benches  and  tools,  the  house  was  destroyed  by 
fire,  by  act  of  incendiarism.  Held,  that  by  insuring,  the 
assured  had  not  relinquished  the  ris^ht  of  exercising  the 
ordinary  and  recessary  acts  of  ownership  over  their  houses, 
and  that  the  insured  might  therefore,  the   policy  being 


C66 


USE    AND    OCCUPATION. 


silent  on  the  subject,  make  not  only  ordinary  repairs,  but 
such  a  thorough  repair  as  to  render  the  house  tenantable 
in  the  mode  commonly  pursued  on  such  occasion.  But  if 
by  gross  negligence  or  misconduct  of  the  workmen  em- 
ployed, a  fire  ensue,  or  if  alterations  be  made  in  the  sub- 
ject insured,  materially  enhancing  the  risk,  and  not  neces- 
sary to  the  enjoyment  of  the  premises  insured,  or  according 
to  usage  anr"  custom  were  not  the  result  of  the  exercise 
of  such  ordinary  acts  of  ownership,  as  in  the  understand- 
ing of  the  parties  were  conceded  to  the  insured  at  the 
time  of  the  insurance ;  and  a  loss  by  fire  is  thereby  pro- 
duced; then  the  assured  cannot  recover.  Held  further^ 
that  all  these  questions  were  to  be  determined  by  the  jury, 
and  not  by  the  court.  Jolly  v.  Baltimore  Equitable  Soci- 
ety, 1  Harris  <fe  Gill,  Md.  295.     1827. 

§  3.  Policy  was  on  "  building  occupied  as  a  manufac- 
tory of  hat  bodies  and  on  the  privilege  for  all  the  process 
of  said  business."  The  policy  provided  that  "  an  appro- 
priation or  use  of  the  premises,  for  any  business,  trade,  or 
vocation  denominated  hazardous,  extra  hazardous,  <fec.," 
without  consent,  should  avoid  the  policy,  so  long  as  the 
premises  were  so  used.  Among  the  classes  of  extra  haz- 
ardous were  enumerated  "  carpenters  in  their  shop,  houses 
building  or  repairing ; "  and  it  was  shown  that  a  room  in 
the  premises  insured  had  been  used  for  repairing  machin- 
ery, necessary  to  the  business,  by  a  carpenter.  Jleld^  that 
such  use  was  within  the  written  privilege,  "  for  all  the  pro- 
cess of  manufacturing  hat  bodies,"  and  did  not,  therefore, 
avoid  the  policy.  Lounsbury  v.  Protection  Ins.  Co.  8 
Conn.  459.     1831. 

§  4.  The  policy  prohibited  the  use  of  the  premises  for 
any  business  or  vocation  specified  in  the  memorandum  of 
hazards.  The  business  of  a  "grocer"  was  not  therein 
mentioned.  Held^  that  it  was  not,  therefore,  a  prohibited 
trade,  and  might  be  earned  on  in  the  usual  manner,  and 
if  "oils  and  spirituous  liquors"  were  necessary  incidents 
to  the  trade  of  a  grocer,  they  might  be  kept  upon  the 
premises,  although  they  were  specified  among  the  enumer- 
ation of  prohibited  articles.  New  Yoi'k  Equitable  Ins. 
Co.  V.  Langdon,  6  Wend.  N.  Y.  623.     1831. 


USE    AND    OCCUPATION. 


667 


repairs,  but 
tenantable 
on.    But  if 
Drkmen  em- 
in  the  sub- 
net neces- 
)r  according 
the  exercise 
anderstand- 
ired  at  the 
hereby  pro- 
M  further y 
by  the  jury, 
itable  Soci- 


a  manufac- 
the  process 
"  an  appro- 
js,  trade,  or 
ious,  <fec.," 
3ng  as  the 
extra  haz- 
lop,  houses 
a  room  in 
Qg  machin- 
Held^  that 
all  the  pro- 
,  therefore, 
Ins.  Co.  8 


remises  for 
andum  of 
ot  therein 
prohibited 
inner,  and 
incidents 
upon  the 
e  enumer- 
fcable  Ins. 


W 


§  5.  These  words  of  description  in  a  policy  of  insur- 
ance, "  now  occupied  as  a  dwelling-house,  but  to  be  here- 
after occupied  as  a  tavern,  and  privileged  as  such,"  are 
not  a  warranty  of  the  assured  that  it  should  be  at  all 
times  during  the  risk  occupied  as  a  tavern ;  but  a  license 
or  privilege  granted  by  the  company,  that  it  might  be  so 
occupied.  Catlin  v.  Springfield  Fire  Ins.  Co.  1  Sumner 
C.  C.  U.  S.  434.     1833. 

§  6.  Although  a  night  auction  is  not  included  in  the 
schedule  of  hazardous  employments,  y^t  if  the  issue  pre- 

h) 


az- 


sents  the  question,  whether  a  night  auction  is  more 
ardous  than  a  dry  goods  store,  the  jury  must  find  upon  it 
from  the  evidence  before  them.  Harris  v.  Protection  Ins.. 
Co.  Wright,  Ohio,  648.     1834. 

§  7.  Policy  on  cotton  mills,  gear,  steam  engine,  <fec., 
recited  that  the  "  buildings  were  brick,  &c.,  warmed,  <fec.,. 
worked  by  the  steam  engine  above  mentioned,  in  tenure 
of  one  firm  only,  standing  apart  from  all  other  mills,  and 
worked  by  day  only."  Held^  that  the  *'  worked  by  day 
only  "  referred  to  the  mills,  and  that  it  was  no  breach  of 
the  policy  that  the  engine  was  kept  going  by  night,  and 
some  parts  of  the  machinery  were  turned  by  it ;  the  cot- 
ton mill  being  worked  by  day  only ;  and  that  a  plea,  set- 
ting up,  as  a  breach  of  the  policy,  that  the  steam  engine 
was  worked,  was  bad,  and  the  plaintiff  was  entitled  ta 
judgment.  Whitehead  v.  Price,  2  Cromp.  Mees.  5c  Ros. 
Exch.  447.  1835.  Same  case,  1  Gale,  151.  Same  case,  5 
Tyrwhitt,  825. 

§  8.  Policy  on  house,  "  and  also  a  kiln  for  drying  corn 
in  use."  Third  condition  provided  that  policy  should  be 
void  in  case  of  misrepresentations  in  the  description  of 
the  premises ;  and  the  sixth  condition  avoided  the  policy 
in  case  of  change  in  the  business  carried  on,  without  no- 
tice to  the  company.  The  proof  was,  that  a  vessel  laden 
with  bark  sunk  npar  the  premises,  and  the  assured  allowed 
the  bark  to  be  dried,  gratuitously,  at  his  kiln,  and  this 
caused  the  fire.  Held^  that  the  case  was  not  within  the 
third  condition,  for  that  related  to  the  time  when  the  de- 
scription was  made,  and  it  was  correct ;  nor  within  the 
sixth,  for  that  related  to  a  permanent  or  habitual  alteration 


V 


Ill 


668 


USE    AND    OCCUPATION. 


in  the  business  ;•  and  judgment  was  rendered  in  favor  of 
assured.  Shaw  v.  Kobberds,  6  Adolph.  &  Ellis,  75  (33  E. 
C.  L.  12).     1837. 

§  9.  Policy,  on  machinery  of  certain  cotton  mills, 
**  warranted  that  they  be  waimed  and  worked  by  steam, 
lighted  by  gas,  and  worked  by  day  only."  Plea,  that 
parts  of  said  mills,  to  wit,  a  certain  steam  engine  and  cer- 
tain upright  and  horizontal  shafts  were  worked  by  night, 
is  bad.  It  should  have  alleged  that  the  mills  were  worked 
by  night,  under  which  the  question  might  be  made  before 
the  jury,  whether  the  proof  supported  the  allegation.  It 
miffht  be  that  the  parts  mentioned  were  worked,  and  the 
mills  not  be  worked,  within  the  meaning  of  the  policy. 
Mayall  v.  Mitford,  6  Adolph.  <fe  Ellis,  670.  (33  E.  C.  L. 
170.)     1837. 

§  10.  This  insurance  was  on  the  undivided  half  of  a 
paper  mill  and  of  the  machinery  therein.  Afterwards 
the  rag-cutter  and  duster  were  displaced,  and  a  pair  of 
mill-stones  for  grinding  grain  were  substituted,  but  the 
building  and  machinery  in  other  respects  remained  un- 
changed. The  fire  arose  from  a  cause  othe*  than  the 
change  in  occupation.  The  policy  contained  a  description 
of  risks  in  classes,  denominated  hazardous,  extra  hazard- 
ous, and  those  mentioned  in  a  memorandum,  wjiich  would 
be  insured  at  special  rates,  and  in  this  memorandum  were 
mentioned  grist  mills  and  paper  mills.  It  also  contained 
a  condition  that  the  insurance  should  be  void  if  the  build- 
ing insured  should  be  put  to  a  use  denominated  hazard- 
ous or  exti^a  hazardous.  Heldy  l«»t,  that  the  contract 
amounted  to  a  warranty  that  the  building  should  continue 
to  be  a  paper  mill,  but  that  by  the  introduction  of  the 
mill-stones  the  character  of  the  building  was  not  changed ; 
it  was  a  paper  mill  still ;  2d,  that,  admitting  the  use  of  the 
mill-stones  to  have  increased  the  risk,  as  the  policy  had 
expressly  prov  ided  that  putting  the  building  to  a  use  de- 
nominated hazardous  or  extra  hazardous  should  avoid  the 
insurance,  and  had  not  provided  for  any  such  conse- 
quences, when  the  building  is  put  to  a  use  described  in 
said  memorandum,  it  could  not  have  been  the  intent  of  the 
contract  that  use  of  the  building  for  the  purposes  men- 


USE    AND    OCCUPATION. 


669 


in  favor  of 
I,  75  (33  E. 

tton  mills, 
i  by  steam, 
Plea,  that 
le  and  cer- 
by  niffht, 
Bre  worked 
lade  before 
Ration.  It 
d,  and  the 
;he  policy. 
!3  E.  C.  L. 

half  of  a 
ifterwards 
a  pair  of 
I,  but  the 
ained  un- 
than  the 
escription 
a  hazard- 
ch  would 
lum  were 
contained 
he  build- 
I  hazard- 
contract 
continue 
n  of  the 
changed ; 
se  of  the 
licy  had 
I  u«e  de- 
ivoid  the 
'h  conse- 
ribed  in 
Qt  of  the 


tioned  in  the  memorandum  should  affect  its  validity ;  and 
as  the  fire  in  this  case  arose  from  a  cause  within  the  risk 
as  originally  taken,  assured  was  entitled  to  recover.  Wood 
V.  Hartford  Ins.  Co.  13  Conn.  534.     1840. 

§  11.  Keeping  a  bar-room  in  a  boarding-house  for  re- 
tailing liquors  to  boarders,  does  not  violate  a  provision  in 
the  policy  prohibiting  "  tavern  keeping."  Kafferty  v.  New 
Brunswick  Fire  Ins.  Co.  3  Hanison,  N.  J.  480.     1842. 

§  12.  Building,  insured  as  a  "  dwelling-house,"  may 
be  afterwards  occupied  as  a  "  boarding-house,"  if  "  board- 
ing-houses "  are  not  enumerated  in  classes  of  hazards,  or 
otherwise  prohibited.  Rafferty  v.  New  Brunswick  Fire 
Ins.  Co.  3  Harrison,  N.  J.  480.     1842. 

§  13.  The  owner  of  a  house,  which  has  been  insured, 
has  a  right  to  have  it  occupied  by  any  one  he  pleases ; 
providecf  the  occupation  of  such  persons,  or  the  property 
placed  in  the  house,  is  not  of  a  nature  to  vitiate  the  policy, 
under  the  condition  relative  to  the  hazardous  or  extra 
hazardous  risks.  Lyon  v.  Commercial  Ins.  Co.  2  Rob.  La. 
266.     1842. 

§  14.  The  policy  provided  that  in  case  the  building 
should  be  appropriated,  applied  or  used  to  or  for  the  pur- 
pose of  cafrymg  on.  or  exercising  therein  any  trade,  busi- 
ness or  vocation,  denominated  hazardous,  extra  hazardous^ 
or  specified  in  the  "memorandum  of  special  rates,  the  policy 
should  be  of  no  effect,  so  long  as  tne  building  should  be 
soused.  The  memorandum  referred  to,  specified  "houses 
building  or  repairing."  Ifeld,  that  these  words  taken  in 
connection  with  the  provision  of  the  policy,  related  to  car- 
rying on  the  trade  or  occupation  of  house  building,  or 
house  repairing  in  or  about  the  building  insured,  and  not 
to  the  repaii*s  of  the  particular  building  itself;  it  was  the 
appropriation  of  the  building  to  these  purposes,  that  the 
policy  prohibited,  and  that  under  it  assured  might  make 
all  necessary  repairs  without  avoiding  his  policy.  Grant 
V.  Howard  Ins.  Co.  5  Hill,  N.  Y.  10.     1843. 

§  15.  On  general  principles  (in  the  absence  of  any 
stipulation  in  the  policy  on  the  subject),  a  policy  is  not 
avoided  by  an  alteration  in  the  trade  carried  on  upon  the 


670 


USE    AND    OCCUPATION. 


1,'! 


": 


=  i 


premises ;  and  a  condition,  requiring  the  insured  "  to  com- 
municate any  circumstance,  wnich  is  material  to  be  made 
known,  to  the  company,  to  enable  them  to  judge  of  the 
risk  they  have  undertaken"  has  reference  to  the  time 
when  the  policy  was  effected,  and  does  not  apply  to  what 
may  take  place  afterwards.  Pim  v.  Reid,  6  Man.  &  Grang. 
1.  (46  E.  C.  L.  1.)  1843.  See  comments  on  this  case  in 
Silem  V.  Thornton,  3  Ellis  &  B.  868. 

§  16.  Where  application,  which  was  made  part  of  the 
policy,  described  the  premises  insured  as  occupied  for  a 
"  grist  mill,"  and  it  was  proved  to  have  been  also  occupied 
for  "  carpenter's  work ; "  Meld,  to  be  a  warranty  as  to  occu- 
pation, breach  of  which  avoided  the  policy.  Jennings  v. 
Chenango  County  Mut.  Ins.  Co.  2  Denio,  N.  Y.  75.     1846. 

^  ^  §  l*^*  Plaintiff  in  his  application,  which  was  referred 
Cifrf  to  and  made  part  of  the  policy,  described  building  as  oc- 
cupied by  several  tenants  for  certain  purposes.  In  1843, 
when  the  policy  issued  upon  this  application,  was  about 
to  expire,  he  made  application  for  furthe "  insurance  upon 
same  premises,  and  wrote  in  the  applica'.on  for  the  second 
insurance,  "  For  particulars  relative  to  the  description  of 
the  brick  store,  reference  is  had  to  my  application  for 
policy,  No.  12,018,"  which  was  the  first  application.  This 
last  application  was  also  referred  to  and  made  part  of  the 
second  policy.  At  date  of  the  second  application  and 
policy,  the  occupations  were  different,  and,  as  appeared,  by 
agreement  of  the  parties  themselves,  more  hazardous  than 
at  date  of  first  insurance.  Held,  that  the  statements  of 
the  occupation  of  the  premises  in  the  application  were 
merely  representations,  and  not  express  warranty ;  and 
that  the  plaintiff  was  bound  by  them  no  further  than  they 
were  material ;  and  the  materiality  of  such  representations 
was  to  be  determined  by  the  jury.  Boanlj^-'u:  v.  New 
Hampshire  Mut.  Fire  IiiS.  Co.  20  N.  H.  55        >*7. 

^  §  1 8.  The  premises  insured  were  descilil  I  as  " occu- 
pied by  G.,  as  a  private  dwelling."  ffeld,  tilu.;,  this  was  an 
affirmative  stipulation  that  the  house  was  then  occupied  by 
G.,  but  not  a  promissory  agreement  that  he  should  con- 
tinue to  occupy  it ;  and  assured  might  recover,  although 
the  house  had  been  vacated  before,  and  was  yet  vacant  at 


USE    AND    OCCUPATION. 


671 


ion  were 


the  time  of  the  fire.    O'Neill  v.  Buffalo  Fire  Ins.  Co.  3 
Comst.  N.  Y.  122.     1849. 

§  19.  This  policy  was  on  certain  barns,  and  contained 
the  following  statement :  "  All  the  above  described  barns 
are  used  for  hay,  straw,  grain  unthreshed,  stabling  and 
shelter."  Held^  that  these  words  were  descriptive,  and 
not  a  warranty  that  the  barns  should  be  used  only  in  the 
manner  described ;  that  assured  had  the  right  to  use  his 
barns  in  the  ordinary  way ;  and  that  for  assured  to  mix 
and  keep  paints  in  his  barn,  while  painting  his  house,  was 
an  ordinary  use  of  the  same  among  Connecticut  farmers. 
Billings  V.  Tolland  County  Mut.  Fire  Ins.  Co.  20  Conn. 
139.     1849. 

§  20.  A  mere  change  in  the  occupation  of  a  house  in- 
sured against  fire,  without  notice,  <&c.,  there  being  no 
other  alteration  in  the  manner  or  purpose  of  occupation, 
will  not  avoid  a  policy  of  insurance  eflfected  under  the  pro- 
visions of  the  act  6  Wm.  IV,  ch.  18,  incorporating  the 
Wellington  District  Insurance  Company.  Nor  is  a  lease 
of  the  house  insrred  for  one  year,  "  an  alienation  "  within 
the  act.  Hobson  v.  Wellington  District  Ins.  Co.  6  Upper 
Canada,  Q.  B.  536.     1849. 

§  21.  In  an  insurance  upon  a  house  in  process  of 
building,  a  statement,  in  reply  to  inquiry,  that  there  are 
no  stoves  in  it,  must  be  understood  to  mean  that  no  stove 
is  to  be  habitually  kept  and  used  in  it,  as  stoves  are  ordi- 
narily used  in  a  dwelling-house.  The  use  of  a  stove  for 
a  few  days,  subsequent  to  the  effecting  of  the  insurance, 
and  for  a  purpose  connected  with  the  finishing  of  the 
house,  is  not  a  violation  of  the  warranty.  Wflliams  v. 
New  England  Mut.  Fire  Ins.  Co.  31  Me.  219.     1850. 

§  22.  Where  assured's  tenant  had  a  fire  among  some 
chips  under  a  wood  house,  and  adjoining  the  tavern,  being 
the  buildings  insured,  for  the  purpose  of  extracting  grease 
from  spoiled  meat,  and  the  policy  containined  a  provision 
that  the  premises  should  not  be  used  for  "  the  purpose  of 
carrying  on  therein  any  trade  or  business  denominated 
hazardous  or  extra  hazardous,  <fec.,  which  would  increase 
the  hazard,  without  the  consent  of  the  insurer ; "  Held^ 


672 


USE    AND    OCCUPATION. 


that  the  said  provision  pointed  only  to  a  permanent  alter- 
ation in  the  business,  and  as  the  act  done  was  a  mere  tem- 
porary affair,  it  did  not  avoid  the  policy,  though  it  might, 
and  probably  did,  increase  the  risk.  Gates  v.  Madison 
County  Mut.  Ins.  Co.  1  Seld.  N.  Y.  469.     1851. 

§  23.  The  use  of  a  room  for  the  drawing  of  a  lottery 
in  a  building  insured  as  a  "  shoe  manufactory  "  with  per- 
mission of  the  assured,  will  not,  in  the  absence  of  any  pro- 
hibition in  the  policy,  avoid  the  policy  either  on  builaing 
or  on  stock,  altnough  the  drawing  of  such  lotterv  was  au 
unlawful  act.  Boardman  v.  Merrimack  Mut.  t^ire  Ins. 
Co.  8  Cush.  Mass.  583.  1851.  Because  the  contract  of 
insurance  was  not  in  furtherance  of  the  unlawful  act,  i.  e.y 
not  made  to  protect  it.     See  Kelly  v.  Home  Ins.  Co.  1851. 

§  24.  There  is  no  rule  of  law  or  usage,  which  requires 
the  owner  of  an  untenanted  house  to  have  it  guarded  by 
a  keeper,  to  enable  him  to  recover  his  insurance  in  case  of 
a  loss  of  the  building  by  fire.  Soye  v.  Merchants'  Ins.  Co» 
6  La.  An.  761.     1851. 

§  25.  Where  a  policy  described  insured  property  as 
occupied  by  a  certam  individual,  a  change  of  tenants, 
there  being  no  provision  in  the  policy  prohibiting  it,  will 
not  avoid  the  policy,  though  the  first  tenant  may  be  a  care- 
fully prudent,  and  the  second  a  grossly  negligent  one. 
Gates  V.  Madison  County  Mut.  Ins.  Co.  1  Seld.  N.  Y.  469. 
1851. 

§  26.  Where  policy  was  for  "  $2,000  on  their  stock 
as  rope  manufacturers  contained  in  their  brick  building 
with  tin  roof  occupied  as  a  store-house,  and  situate,"  «fec., 
and  no  written  application  had  been  made,  and  it  was  in 
proof  that  a  part  of  the  building  was  used  for  hackling 
hemp  and  spinning  it  into  rope  yarns ;  Ileld^  that  the  de- 
scription "  occupied  as  a  store-house,"  was  a  warranty  that 
the  building  was  occupied  as  a  store-house  only,  and  the 
additional  occupation,  therefore,  avoided  the  policy.  Wall 
V.  East  River  Mut.  Ins.  Co.  3  Seld.  N.  Y.  370.     1852. 

§  27.  Where  policy  w  as  for  $1,000  on  brick  ware- 
house on  Water  Street,  between  Morgan  and  Green  Streets, 
in  block  15,  Saint  Louis,  "  to  be  occupied  as  three  stores, 


USE    AND    OCCUPATION. 


673 


"but  not  as  coffee-houses ; "  and  subsequent  to  execution 
of  the  policy,  and  before  and  at  time  of  the  fire,  one  of  the 
tenements  was  used  as  a  coffee-house,  though  the  fire 
originated  in  another  tenement;  Held,  that  the  words, 
"  not  to  be  used  as  coffee-houses,"  were  equivalent  to  a 
warranty  that  the  premises  should  not  be  used  for  that 
purpose,  and  the  plaintiff  could  not  recover.  Lawless  v. 
Tennessee  Marine  &  Fire  Ins.  Co.  Circ.  Ct.  St.  Louis,  Mo. 
1852.     Cited  in  Angel  en  Fire  &  Life  Ins.  note  2,  to  §  169. 

§  28.  A  policy  of  insurance  was  on  his  brick  dwell- 
ing and  stores,  and  no  other  description  of  the  building 
or  business  to  be  earned  on  therein ;  and  in  the  printed 
body  of  the  policy  it  was  stipulated  that,  "if  these  prem- 
ises shall  hereafter  be  appropriated,  applied  or  used,  to  or 
for  the  purpose  of  carrymg  on  therein  any  trades,  business 
or  vocations  denominated  hazardous,  extra  hazardous,  (fee, 
the  J,  and  so  long  as  the  premises  shall  be  so  applied  or 
used,  this  policy  shall  cease  and  be  of  no  force  and  effect." 
In  an  action  on  the  policy  the  defendant  offered  to  prove 
that  one  of  the  stores  was  occupied  for  a  grocery,  and  con- 
tained hazardous  and  extra  hazardous  articles,  but  the 
evidence  was  not  admitted ;  Held,  that  in  the  exclusion  of 
such  evidence  there  was  error  on  the  part  of  the  court 
below,  and  that  the  above  provision  in  the  policy  was  a 

Erospective  warranty,  and  as  obligatory  on  assured  as  if  it 
ad  been  retrospective  or  concurrent ;  and  that  a  breach 
of  it  would  avoid  the  policy,  although  the  fire  was  not  oc- 
casioned by  it,  thougn  it  was  unknown  to  the  assured, 
and  although  the  business  had  not  been  changed  from 
what  it  was  at  the  time  of  making  the  policy.  Mead  v. 
Northumberland  Ins.  Co.  3  Seld.  N.  Y.  530.     1852. 

§  29.  The  application  was  made  part  of  the  policy, 
and  a  warranty  on  the  part  of  the  assured.  In  answer  to 
the  question  as  to  occupation  of  the  building,  assured  re- 
plied, "  formerly  used  as  a  machine  shop,  all  of  which 
business  is  now  stopped,  and  shop  fastened  up,  and  only 
used  for  the  purpose  of  the  meeting  of  the  band  two  even- 
ings of  the  week  on  the  second  floor."  After  the  insur- 
ance, the  building  was  used  for  other  purposes,  which  use 
was  set  up  in  detiense,  as  a  breach  of  warranty ;  Held,  that 
48 


674 


USE    AND    OCCUPATION. 


the  answer  of  assured  related  only  to  the  condition  of 
things  at  the  time  of  the  insurance ;  and  as  the  company 
had  guarded  against  any  "  increase  of  risk,"  by  an  express 
condition  in  the  policy,  that  to  give  effect  to  both  clauses 
in  the  contract,  the  warranty  as  to  occupation  must  be  con- 
strued as  affirmative  only,  and  not  intended  to  apply  to 
the  future  condition  of  the  property.  Blood  v.  Howard 
Fire  Ins.  Co.  12  Cush.  Mass.  472.     18o3. 

§  30.  The  insurance  was  on  "  hay  and  grain,  live 
stock,  carriages,  cfec,  in  a  barn  *  *  *  occupied  by  the 
applicant  as  a  tavern  barn."  The  conditions  annexed 
were  made  part  of  the  policy.  One  of  them  required  the 
assured  to  state  in  his  affidavits  of  loss,  "  that  there  has 
been  no  alteration  or  occupation  of  said  premises  (not 
assented  to  by  the  company)  which  increased  the  hazard 
of  said  property,  since  the  insurance  was  effected."  Sub- 
sequent to  the  insurance,  the  assured  permitted  another 
party  to  keep  a  "livery  stable"  in  a  part  of  the  barn, 
which  occupation  was  continued  to  time  of  the  fire.  The 
referees  found  that  an  occupancy  of  the  bam  for  this  pur- 
pose was  not  such  a  change  in  the  use  of  the  premises  as 
to  materially  increase  the  risk,  basing  such  decision  on  the 
ground  that  the  occupation  of  the  building  as  a  livery 
stable  was  not  to  interfere  with  assured's  right  to  occupy 
the  whole  stable  as  a  "  tavern  barn,"  and  that  assured  had 
a  right  to  turn  out  the  tenant  at  pleasure.  There  was 
evidence  given  before  the  referees,  by  three  insurance 
agents,  that  such  occupation  of  the  building  made  one-half 
of  one  per  cent,  more  in  the  rates  of  insurance  charged. 
On  motion  to  set  aside  report  of  the  referees ;  Held^  that 
the  referees  erred  in  holding  that  the  keeping  of  the  livery 
stable  on  the  premises  was  not  such  a  change  in  the  use 
of  the  premises  as  materially  increased  the  risk ;  and  that 
they  also  erred  in  holding  that  the  fact  of  the  owner  of  the 
livery  stable  being  but  a  tenant  at  will,  prevented  his  use 
of  the  premises  being  in  law  an  occupation  that  rendered 
the  policy  void.  Hobby  v.  Dana,  17  Barb.  N.  Y.  111. 
1S53. 

§  31.     Policy  on  stock  of  cabinet  maker  with  condi- 
tion that,  in  case  of  any  alteration  of  building  containing 


USE    AND    OCCUPATION. 


675 


the  property  insured,  or  of  any  steam,  steam  engine,  &c., 
being  introduced,  without  bein^  notified  to  the  company 
and  endorsed  on  the  policy,  no  benefit  will  arise  to  the  in- 
sured on  the  policy  in  case  of  loss.  The  insured  erected  a 
brick  furnace  or  boiler,  to  which  he  attached  a  steam 
engine  to  tiy  whether  it  was  worth  hia  while  to  buy  it, 
and  built  a  fire  once,  giving  no  notice  to  the  com- 
pany. Held,  that  the  policy  was  avoided,  and  that  it 
made  no  difference  whether  the  engine  was  used  by  way 
of  experiment,  or  as  a  mode  of  carrying  on  business,  or 
whether  it  was  usei  i  for  a  longer  or  shorter  time.  Glen  v. 
Lewis,  8  Wels.  Hurlrt.  «fc  Gord.  Exch.  607.     1853. 

§  32.  A  policy  of  insurance  upon  stock  of  goods,  de- 
scribed as  being  in  a  certain  store  occupied  by  the  assured, 
provided  that  in  case  of  any  alterations  in  or  about  the 
premises  materially  increasing  the  risk,  without  notice 
thereof  to  the  company,  the  policy  should  be  void ;  but 
that  no  alterations, "  not  within  the  control  of  the  assured  " 
should  affect  the  insurance.  The  goods  having  been 
seized  on  execution,  the  sheriff  proceeded  to  sell  the  same 
at  auction,  in  the  same  store,  and  whilst  thus  selling,  the 
fire  originated.  No  notice  of  such  sale  had  been  given  to 
the  company.  Held,  that  the  occupation  of  the  premises 
for  the  purpose  of  selling  out  at  auction,  was  a  use  "  within 
the  control  of  the  assured  "  within  the  meaning  of  the  by- 
law; but  whether  such  use  increased  the  risk,  was  a 
question  to  be  determined  by  the  jury.  Rice  v.  Tower,  1 
Gray,  Mass.  426.     1854. 

§  33.  A  house  insured  was  described  as  a  "  dAvelling- 
house,"  when  in  fact  it  was  a  bawdy-house,  the  keeping  of 
which  Avas  not  by  the  terms  of  the  policy  prohibited  or 
mentioned.  The  fire  was  occasioned  by  a  mob  destroying 
the  furniture  and  setting  fire  to  the  building,  and  assurers 
set  up  in  defense  that  this  was  such  a  concealment  of  the 
occupation  as  avoided  the  policy.  Held,  that  in  determin- 
ing the  materiality  of  the  fact  suppressed,  only  the  natural 
cDnsequences  of  the  use  to  which  the  house  was  applied 
were  to  be  regarded  ;  and  if  the  use  to  which  it  was  ap- 
plied enhanced  the  risk,  and  the  destruction  by  fire  was 
the  natural  consequence  of  such  use,  the  insurers  were,  not 


61Q 


UP".    AND    OCCUPATION. 


liable,  but  that  acts  of  lawless  violence  were  not  the  nat- 
ural consequences  of  the  use  of  a  building  as  a  bawdy- 
house.  Loehner  v.  Home  Mut.  Ins.  Co.  17  Mo.  247.  1853. 
Loehner  v.  Home  Mut.  Ins.  Co.  19  Mo.  628.    1854. 

§  34.  Under  policy  on  "  a  pail  factory,  chair  shop, 
saw  mill,  and  store  houses  connected,"  the  use  of  a  part  of 
the  pail  factory  for  a  "  grist  mill "  avoids  the  policy,  under 
condition  "  that  if  the  premises  be  apjjropriated,  applied 
or  used  to  or  for  the  purpose  of  carrying  on  therem  any 
trade,  business  or  vocation,  enumerated  in  the  classes  of 
hazards,  ^vithout  notice  and  consent  of  company,  then,  and 
so  long,  this  policy  shall  cease,"  "  grist  mills  "  being  one  of 
the  forbidden"  occupations.  Lee  v.  Howard  Fire  Ins.  Co. 
3  Gray,  Mass.  583.     1854. 

§  35.  A  policy  of  insurance  on  their  "lumber,  lime, 
nails  and  lead  in  their  two  stores  on  their  wharf  at  Wey- 
mouth," provided  that  whenever  the  circumstances  dis- 
closed in  any  application  shall  become  so  changed  as  to 
increase  the  risk,  the  policy  shall  be  void  unless  notice  be 
given  to  the  company,  and  an  additional  premium  paid. 
Subsequent  to  the  insurance,  a  vessel  was  wrecked  in  front 
of  assured's  stores,  and  the  seamen  being  wet  and  cold, 
assured  gave  them  permission  to  sleep  in  the  counting 
room  of  one  of  the  stores  for  that  night,  but  expressly  for- 
bid them  to  make  any  fire  in  the  stove,  as  the  funnel  in 
the  loft  was  in  au  unsafe  condition.  Contrary  to  his 
orders,  the  seamen  made  a  fire  in  the  stove,  in  consequence 
of  which  the  building  was  destroyed.  Held,  that  the  occu- 
pation of  the  building,  with  assent  of  the  assured,  for  a 
resting  place  for  a  single  night  for  the  seamen,  was  not 
such  a  change  of  risk,  within  the  meaning  of  the  condition, 
as  to  avoid  the  policy ;  nor  did  the  builtling  of  the  fire  in 
the  stove,  contrary  to  the  express  order  of  assured,  fiimish 
any  defense  against  the  assured's  claim ;  it  being  a  wrong- 
ful act  of  third  persons,  for  which  the  company  were  liable, 
in  the  same  manner  and  to  the  same  extent  as  if  those 
persons  had  unlawfully  broken  into  the  counting-room, 
and  burned  the  building  by  kindling  a  fire  on  the  floor. 
Loud  V.  Citizens'  Mut.  Ins.  Co.  2  Gray,  Mass.  221.    1854. 

§  36.    The  occupation  of  a  portion  of  an  unused  flour 


USE    AND    OCCUPATION. 


677 


iot  the  nat- 
a  bawdy. 
J47,    1852. 
354. 

;hair  shop, 
)f  a  part  of 
licy,  under 
ed,  applied 
;herem  any 
)  classes  of 
r,  then,  and 
einff  one  of 
ire  Ins.  Co. 

raher,  lime, 
irf  at  Wey- 
itances  dis- 
nged  as  to 
58  notice  be 
nium  paid, 
ked  in  front 
b  and  cold, 
3  counting 
pressly  for- 
i  funnel  in 
ary  to  his 
onsequence 
at  the  occu- 
mred,  for  a 
n,  was  not 
3  condition, 
■  the  fire  in 
•ed,  furnish 
g  a  wrong- 
vere  liable, 
as  if  those 
ating-room, 
the  floor. 
21.     1854. 

lused  flour 


mill,  hj  the  owner,  for  some  three  months,  engaged  in 
coopermg  as  the  demand  served,  in  violation  of  the  con- 
ditions and  by-laws  annexed  and  me^e  part  of  the  policy 
(and  which  provided  that  such  appropriation  to  other  pur- 
poses, increasing  the  risk,  should  ipso  facto  avoid  the 
policy),  avoids  the  policy;  and  when  it  is  shown  that 
such  forbidden  trade  was  actually  carried  on,  the  breach 
of  the  by-laws  and  conditions  is  complete,  although  the 
trade  was  not  carried  on  for  such  a  length  of  time  as  to 
become  "  permanent  or  habitual."  Harris  v.  Columbiana 
Mut.  Ins.  Co.  4  Ohio  St.  285.     1854. 

§  37.  In  the  application  for  insurance,  which  by  ex- 
press reference  was  made  part  of  the  contract,  was  this 
question:  "For  what  purpose  is  the  building  occupied, 
and  by  whom  ? "  Answer :  "  As  a  hotel,  by  Mr.  Holmes." 
At  bottom  of  the  application  assured  stipulated  that  the 
above  was  a  full,  just  and  true  exposition  of  all  the  facts 
regarding  the  risk,  "  so  far  as  the  same  are  known  to  the 
applicant."  The  policy  provided  that  a  false  description 
by  the  assured,  of  a  building,  as  to  its  occupancy,  value, 
<fec.,  should  avoid  the  policy.  The  building  insured  was 
in  fact  occupied  as  a  house  of  ill-fame,  and  company 
contended  that  there  was  a  breach  of  warranty  as  to  the 
occupation  of  the  building,  and  this  whether  the  assured 
knew  of  such  occupation  or  not.  Ifeldy  that  the  building 
being  leased  as  a  hotel,  and  apparently  occupied  as  such, 
the  fact  of  its  being  used  as  a  house  of  ill-fame  by  the 
tenant,  without  the  Knowledge  or  consent  of  the  assured, 
would  not  prevent  a  recovery.  Hall  v.  People's  Mut.  Fire 
Ins.  Co.  6  Gray,  Mass.  185.     1856. 

§  38.  Where  policy  stipulated  against  an  appropria- 
tion or  use  of  the  premises  for  any  of  the  purposes  enumer- 
ated in  the  classes  of  hazards,  among  which  were  "  mills, 
manufactories,  or  mechanical  operations  requiring  fire 
heat ; "  Held^  that  if  the  use  of  a  corn  meal  mill  in  con- 
nection with  a  fire  kiln  for  drying  com  meal  was  not  a 
known  or  usual  incident  or  an  appropriate  part  of  the 
ordinary  business  of  a  "  steam  flouring  mill,"  the  introduc- 
tion of  such  a  business  into  a  flouring  mill  insured,  was  a 
breach  of  the  consideration  of  the  policy,  and  rendered  it 


678 


USE    AND    OCCUPATION. 


inoperative.    Washington  Mut.  Ins.  Co.  v.  Merchants'  &. 
Manufacturers'  Ins.  Co.  5  Ohio  St.  450.     1856. 

• 

§  39.  Policy  for  $1,500  was  taken  out  on  store  goods, 
and  in  application,  which  was  copied  into  policy,  assured 
said,  among  other  words  of  description,  "  clerk  sleeps  in 
store."  For  two  months  or  more  before  the  fire,  the  clerk 
did  not  sleep  in  the  store,  nor  was  he  sleeping  there  the 
night  of  the  fire.  Held,  that  those  words,  standing  in  the 
collocation  of  descriptive  temis,  were  mere  descriptions  of 
occupancy,  and  not  a  warranty  for  the  future.  Frisbie  v. 
Fayette  Mut.  Ins.  Co.  27  Penn.  St.  32').     1856. 

§  40.  Where  policy  provided,  "that  whenever  any 
alteration  shall  be  made  in  any  l)uihling  insured,  which 
increases  the  risk  or  hazard  of  the  same,  so  as  to  increase 
the  rate,  such  alteration  shall  avoid  the  policy,  unless  the 
assured  give  an  additional  premium  according  to  the  rate 
of  exposure.  This  company  will  not  be  responsible  for 
any  loss  that  occurs  by  fire  in  consequence  cf  repairing, 
finishing,  or  building  additions  to  any  building  insured  in 
this  compaay ; "  Held,  that  if  the  evidence  showed  that 
the  building,  when  insured,  was  in  an  unfinished  state,  and 
was  in  the  process  of  being  finished,  and  the  use  of  a  stove 
for  the  purpose  of  diying  the  plastering  was  for  a  tempo- 
rary purpose,  and  not  for  a  peimanent  change  of  the  busi- 
ness or  purpose  for  which  the  house  was  built  and  insured, 
to  wit,  "  A  tavern  and  dwelling-house,"  there  was  nothing 
in  the  condition  which  for  that  reason  avoided  the  policy. 
Troy  Fire  Ins.  Co.  v.  Carpenter,  4  Wis.  20.     1856. 

§  41.  Where  three  adjoining  houses  were  insured  in 
one  policy,  for  a  specified  sum  on  each,  and  one  of  them, 
which  at  time  of  insurance  was  occupied  as  a  shoe  store, 
was  afterward,  without  the  knowledge  or  consent  of  the 
insurers  changed  into  a  grocery  store,  in  which  gunpowder 
was  kept,  and  from  an  explosion  of  wliich  all  the  houses 
were  injured,  the  conditions  annexe<l  to  the  policy  requir- 
ing "  groceries  and  gunpowder  "  to  be  specified  and  p^  a 
higher  rate  of  premium,  or  policy  should  be  loid ;  Jleld, 
that  the  change  of  occupation  and  keeping  of  gunpowder 
avoided  the  policy ;  and  that  the  contract  was  entire,  and 
there  could  be  no  recoveiy  for  the  injury  to  any  of  the 


USE    AND    OCCUPATION. 


679 


Merchants'  & 

.6. 

»n  store  goods, 
)olicy,  assured 
lerk  sleeps  in 
fire,  the  clerk 
[)ing  there  the 
landing  in  the 
lescriptions  of 
•e.  Frisbie  v. 
50. 

ivhenever  any 
nsured,  which 
as  to  increase 
icy,  unless  the 
iig  to  the  rate 
■esponsible  for 
i  cf  repairing, 
ing  insured  in 

showed  that 

«hed  state,  and 

use  of  a  stove 

for  a  tempo- 
re of  the  busi- 
t  and  insured, 
e  was  nothing 
ed  the  policy. 

1856. 

ere  insured  in 
I  one  of  them, 
a  shoe  store, 
onsent  of  the 
[•li  gunpowder 
ill  the  houses 
policy  requir- 
ied  and  p^  a 
e  \  oid ;  Jield, 
of  gunpowder 
as  entire,  and 
o  any  of  the 


"houses,  although  the  assured  did  not  know  that  gunpow- 
der was  kept  by  his  tenant  in  the  house.  Fire  Association 
of  Philadelphia  v.  Williamson,  26  Penn.  St.  196.     1856. 

§  42.  In  an  action  on  a  policy  of  re-insurance  for 
$4,000  on  "  stock  of  flour,  grain  and  cooperage,  contained 
in  their  stone  and  brick  steam  flouring  mill,"  where  policy 
provided  against  an  appropriation  or  use  of  the  premises 
for  any  of  the  purposes  mentioned  in  the  "  classes  of  haz- 
ards," and  in  which  were  enumerated  "  mills,  manufactories 
and  mechanical  operations  requiring  the  use  of  fire  heat ; " 
Helcl,  that  the  question,  whether  the  use  of  a  fire  kiln  for 
drying  corn  in  connection  with  a  corn  meal  mill,  as  well  as 
the  question,  whether  the  use  of  a  corn  meal  mill  itself 
was  incident  to  or  an  ordinary  and  appropriate  part  of 
the  business  of  a  "  steam  flouring  mill,"  were  matters  of 
fact  proper  for  determination  by  the  jury,  and  not  by  the 
court.  Washington  Mut.  Ins.  Co.  v.  Merchants'  &  Manu- 
facturers' Mut.  Ins.  Co.  5  Ohio  St.  450.     1856. 

§  43.  Plaintiff  insured  with  defendants  for  i62,000, 
the  property  insured  being  described  in  his  application  as 
his  stock  of  dry  goods  contained  in  the  first  and  second 
floors  of  a  three-story  building  occupied  by  him  as  a  dry 
goods  store,  the  thiiid"  story  being  occupied  by  another 
party  as  a  dwelling  and  architect's  office.  By  the  policy 
the  insured  coveilanted  that  the  representations  made  in 
the  application  were  true,  and  that  if  otherwise,  the  policy 
should  be  void ;  and  it  was  agreed  that  if  the  building 
shoul '.  during  the  insurance,  be  used  for  any  trade  or  busi- 
ness denominated  hazardous,  extra  hazardous,  or  specially 
hazardous,  in  the  memorandum  annexed  to  the  policy,  or 
for  the  purpose  of  keeping  or  selling  any  of  the  goods  so 
denominated,  unless  agreed  to.  in  writing  by  the  company, 
the  policy  should  be  void.  The  policy  was  also  subject  to 
certain  conditions ;  amongst  which  were,  that  the  applica- 
tion for  insurance  should  specify  the  construction  of  the 
building  to  be  insured  or  containing  property  to  be  insured, 
and  by  whom  occupied ;  that  it  should  be  stated  whether 
the  goods  insured  were  or  not  of  the  descriptions  denomi- 
nated hazardous,  extra  hazardous,  or  included  in  the  mem- 
•orandura  of  special  rates ;  that  if  after  the  insurance  was 


ii 


I 


680 


USE    AKD    OCCUPATION. 


eflfected,  the  risk  should  be  increased  by  any  means  within 
the  control  of  the  assured,  or  if  such  building  should  be- 
occupied  in  uny  way  so  as  to  render  the  risk  more  hazard- 
ous than  at  time  of  insuring,  such  insurance  should  be  void. 
In  the  memorandum  referred  to,  hat  finishers  and  sulphur 
were  included  among  the  trades  and  goods  deemed  hazard- 
ous, and  which  it  was  stipulated  should  subject  the  build- 
ing and  all  its  contents  to  an  additional  charge;  hat- 
bleaching  was  included  in  the  class  called  extra  hazardous, 
and  hat  manufacturers  in  that  of  extra  hazardous  (each 
with  the  same  stipulation  as  to  extra  charge),  and  at  the 
end  of  the  last  class  was  added,  "  and  generally  all+radpa 
requiring  the  use  of  fire  heat  not  before  enumerated." 
The  policy  had  been  renewed  several  times  before  the 
occurrence  of  the  loss,  always  under  the  original  represen- 
tation. It  appeared  that  the  goods  kept  by  the  plaintiff 
consisted  in  part  of  millinery,  which  in  defendants'  printed 
instructions  to  their  agents,  was  classed  as  extra  hazardous, 
and  ordered  to  be  charged  at  a  higher  rate ;  but  it  was  not 
mentioned  in  the  policy  or  conditions.  Also,  that  the 
business  of  bleaching  straw  l»onnets  was  carried  on  in  the 
third  story  (described  in  the  policy  as  occupied  for  aa 
architect's  office  and  dwelling),  and  a  stove  introduced 
into  the  cellar  for  the  purpose  of  this  process,  in  which 
sulphur  was  also  made  use  of.  No  notice  was  given  to 
defendants  of  any  of  these  changes.  A  fire  occurred,  and 
an  action  having  been  brought,  the  jury  found  for  the 
plain tift*.  On  motion  for  a  new  trial ;  Held,  that  the  policy 
was  avoided  ;  that  bleaching  bonnets  was  included  in  the 
trade  of  "  hat-bleaching,"  mentioned  in  the  class  "  extra 
hazardous,"  and  that  the  plaintiff  having  carried  on  that 
business  without  notice  to  defendants,  no  question  as  to 
the  increase  of  risk  thereby  was  left  for  the  jury,  but  the 
policy,  by  the  express  terms  of  it,  was  at  an  end ;  that 
the  other  conditions  were  broken,  for  the  occupation  of 
the  building  was  altered,  and  the  risk  increased  by  means 
within  the  control  of  the  assured.  The  keeping  of  mil- 
linery would  not  have  been  fatal,  for  plaintiff  could  not 
be  supposed  to  be  aware  of  defendant's  instructions  to 
their  agents ;  nor  would  the  use  of  sulphur,  for  the  mem- 
orandum referred  to  it  only  when  kept  as  stock.  Merrick 
V.  Provincial  Ins.  Co.  14  Upper  Canada,  Q.  B.  439.   185C^ 


means  within^ 
ng  should  be 
more  hazard- 
lould  be  void. 
i  and  sulphur 
;emed  hazard- 
ject  the  build- 
charge;  hat- 
ra  hazardous, 
ardous  (each 
s),  and  at  the 
ally  all +ra(lf»ft 

enumerated." 
!8  before  the 
inal  represen- 
the  plaintiff 
lants'  printed 
ra  hazardous, 
)ut  it  was  not 
Iso,  that  the 
ied  on  in  the 
upied  for  aa 
e  introduced 
ess,  in  which 
vas  given  to 
occurred,  and 
)und  for  the 
lat  the  policy 
eluded  in  the 
class  "extra 
rried  on  that 
uestion  as  ta 
ury,  but  the 
m  end;  that 
ccupation  of 
ed  by  means 
ping  of  mil- 
:iff  could  not 
structions  to 
for  the  mem- 
!k.    Merrick 
1.  439.   185G. 


I 


USE    AND    OCCUPATION. 


681 


^ 


§  44.  Policy  on  a  boiling  house,  <fec.,  being  a  special 
risk.  Policy  recited,  "  no  steam  engine  employed  on  the 
premises,  the  steam  from  said  boiler  being  used  for  heating 
water  and  warming  the  shops."  Condition,  that  in  case 
the  risk  shall  be  increased  by  any  alteration  of  circum- 
stances, without  notice  to  the  company,  the  insurance 
should  be  void.  Afterward  the  insured  put  up  a  steam 
engine,  without  notifiying  the  company,  and  subsequently 
the  fire  occurred ;  but  not  because  of  the  steam  engine ;. 
and  the  jury  found  that  the  steam  engine  did  not  increase 
the  risk.  The  Court  of  Exchequer  held  that  the  policy 
was  avoided,  which  was  reversed  in  Exchequer  Chamber, 
and  the  insured  held  entitled  to  recover.  Stokes  v.  Cox,. 
1  Hurl.  &  Norm.  Exch.  320,  533.      1856. 

§  45.  A  description  of  a  house  in  a  policy  of  insurance  ^1/^ 
as  "occupied  by"  the  insured,  is  a  description  merely, 
and  is  not  an  agreement  that  the  insured  should  continue 
in  the  occupation  of  it ;  and  if  vacant  at  time  of  fire, 
policy  will  not  be  void.  Joyce  v.  Maine  Ins.  Co.  45  Me. 
168.     1858. 

§  46.  By  conditions  of  the  policy,  "  camphene,  pine 
oil,  and  friction  matches,"  were  prohibited  being  kept,  used 
or  sold  in  the  building  insured,  or  in  any  building  contain- 
ing goods  insured,  without  the  special  consent  of  the  com- 
pany in  writing  op  the  policy."  Held,  that  such  condition 
was  not  violated  by  a  casual  use  of  camphene  or  "  friction 
matches,"  by  the  workmen  employed  in  the  building,  con- 
trary to  the  orders  of  the  assured ;  2d,  that  the  use  of 
camphene  and  matches,  contemplated  in  such  clause,  must 
be  a  use  by  authority,  express  or  implied,  of  the  insured ; 
a  known  and  permitted  use ;  that  if  the  assured  knew, 
however,  or  as  prudent  men  ought  to  have  known  of  such 
use,  mere  orders  to  the  contrary  would  not  avail  them ;. 
nothing  short  of  an  enforced  prohibition  would  have  saved 
the  policy ;  and  if  such  use  was  habitual,  the  law  imputes 
to  the  assured  knowledge  and  permission.  Farmers'  & 
Mechanics'  Ins.  Co.  v.  Simmons,  30  Penn.  St.  299.     1858. 

§  47.  Policy  of  $400  on  "  printing  press  in  frame 
building,"  <fec.,  provided  "  that  if  the  premises  above  men- 
tioned shall  at  any  time,  when  such  fire  shall  happen,  be 


II 


682 


USE    AND    OCCUPATION. 


in  whole  or  in  part  occupied  for  purposes  considered  haz- 
ardous, unless  liberty  so  to  occupy  them  be  expressly 
stipulated  for,  this  policy  and  every  clause,  article  and 
thing  therein  contained,  shall  be  void  and  of  no  effect." 
One  of  the  conditions  also  provided,  "  if  any  alterations 
which  tend  to  increase  the  risk,  shall  be  made  in  any 
building  or  buildings  insured  by  this  company,  such  alter- 
ations shall  be  reported,"  &c.  In  the  conditions  of  policy 
there  were  no  enumerations  of  ''hazardous"  articles,  as 
are  usually  contained  in  other  policies.  Subsequent  to 
the  insurance  the  press  was  removed  to  a  brick  building, 
and  consent  of  the  company  thereto  endorsed  on  back  of 
the  policy.  To  the  brick  building  to  which  the  press  had 
been  removed,  additions  of  a  steam  engine,  cupola,  fur- 
nace, and  foundry,  were  subsequently  put  up  in  a  frame 
building  immediately  adjoining  and  back  of  the  brick 
building,  and  in  which  the  fire  originated  that  destroyed 
the  press  insured.  Held,  that  the  condition  as  to  "  alter- 
ations "  had  exclusive  reference  to  buildings  insured,  and 
had  no  application  to  the  subject-matter  of  this  insur- 
ance ;  but  that  the  "  proviso  "  applied  to  contents  as  well 
as  to  buildings,  and  in  this  case  applied  not  only  to  the 
original  buildin^^  in  which  the  press  was  insjired,  but 
also  to  that  to  which  it  had  been  removed ;  and  any  occu- 
pation of  such  building  in  violation  of  such  "  proviso," 
would  avoid  the  policy  on  press;  that  although  there 
were  no  classes  of  hazards  in  the  policy,  yet  the  additions 
Above  referred  to  were  evidence  of  an  increase  of  risk, 
such  as  was  forbidden  by  the  proviso ;  and  that,  in  absence 
of  any  stipulation  whatever  against  an  increase  of  risk, 
good  faith  required  the  assured,  if  he  exposed  the  prop- 
erty to  risk  far  more  hazardous  than  could  have  been 
contemplated  by  the  insurers,  to  notify  them  of  the  change, 
and  a  neglect  to  do  so  might  be  considered  evidence  of 
gross  negligence,  that  would  avoid  the  policy.  Robinson 
V.  Mercer  County  Mut.  Fire  Ins.  Co.  3  Dutch.  N.  J.  134. 
1858. 

§  48.  Under  the  clause  of  a  fire  policy,  making  it 
void  if  any  unauthorized  hazardous  trade,  increasing  the 
risk,  should  be  carried  on  in  the  building,  the  fact  that 
such  trade  was  carried  on,  avoids  the  policy ;  no  matter 


USE    AND    OCCUPATION. 


683 


what  was  the  cause  or  origin  of  the  fire,  or  that  such 
trade  was  carried  on  by  the  tenant  of  the  assured,  without 
his  knowledge  or  consent.  Howell  v.  Baltimore  Equita- 
ble Society,  16  Md.  377.     IS^^O. 

§  49.  The  applications  and  conditions  annexed  were 
referred  to  and  expressly  made  part  of  a  policy  on  a 
"stock  of  merchandise."  In  the  application  were  these 
questions  and  answers,  to  wit :  "  For  what  purpose  is  the 
building  used  ? "  Answer.  "  Wholesale  and  retail  hard- 
ware." "How  many  tenants?"  Answer.  "One." 
Upon  the  trial  it  was  shown  that  the  agent  of  the  com- 
pany had,  a  few  days  previous  to  this  insurance,  surveyed 
the  property  for  another  party,  and,  in  this  instance, 
had  filled  up  the  application,  obtaining  the  assured's  sig- 
nature thereto.  It  was  also  shown  that  the  answer,  with 
reference  to  the  occupancy  of  the  building,  was  untrue,  in 
that  it  was  also  occupied  for  a  "clothing  store,"  in  the 
second  s+'^'  y,  and  for  a  number  of  lodging  rooms  in  the 
upper  story.  At  the  bottom  of  the  application  was  this 
clause :  "  and  the  assured  hereby  covenants  and  engages 
that  the  representation,  given  in  the  application  for  this 
insurance,  is  a  warranty  on  the  part  of  the  assured,  and 
contains  a  just,  full  and  true  exposition  of  all  the  facts 
and  circumstances  in  regard  to  the  condition,  situation 
and  value  of  the  property  insured,  a^d  if  facts  or  cir- 
cumstances shall"  not  be  fairly  represented,  &c.,  then 
the  policy  to  be  void."  In  the  body  of  the  policy  the 
insurance  was  declared  to  be  on  the  following  property, 
"as  described  in  the  application  and  survey  No.  14, 
which  is  hereby  declared  a  part  of  this  policy  and  a  war- 
ranty on  the  part  of  the  assured."  JieM,  that  so  far  as 
the  representations  related  to  the  property  insured,  they 
must  be  true,  or  the  policy  would  be  void;  but  that  a 
false  representation  as  to  something  outside  of  and  inde- 
pendent of  the  propertjT^  insured,  and  which  had  not  in 
any  degree  contributed  to  the  loss,  would  not  have  that 
effect ;  and  as  the  above  clauses,  both  in  application  and 
policy,  related  only  to  the  stock  insured,  and  the  r«^pre- 
sentations  in  respect  to  that  were  admitted  to  be  true,  the 
false  representation  as  to  the  occupancy  of  tlie  Ijuilding, 
which  was  not  insured,  did  not  avoid  the  policy.  How- 
ard Fire  &  Marine  Ins.  Co.  v.  Cornick,  24  111.  455.     1860. 


^^  ^  #  ^ 


■«V'  y'»w 


-«^.*; 


:-  *•*  J*.  -4 


684 


USE    AND    OCCUPATION. 


^ 


§  50.  Insurance  on  premises  described  in  policy  as 
"  the  five-story  brick  building  and  the  three-story  brick 
addition  known  as  the  Lawrence  Block,  occupied  tor  stores 
below,  the  upper  portion  to.  remain  unoccupied  during  the 
continuance  of  the  policy.  Iield,  that  there  was  an  affirm- 
ative warranty,  as  to  the  lower  part,  that  it  was  occupied 
for  stores  at  the  time  of  effecting  insurance ;  and  that  there 
was  a  promissory  warranty,  as  to  the  upper  part,  that  it 
should  remain  unoccupied ;  but  that  there  was  no  warranty, 
as  to  the  lower  part,  that  it  should  continue  to  be  occupied 
for  stores.  Stout  v.  City  Fire  Ins.  Co.  of  New  Haven, 
Supreme  Court,  Iowa,  June  Term.     1861. 


§  51.  A  by-law  of  a  mutual  company  provided,  that 
if  during  life  of  policy,  the  premises  should  be  altered  so 
/  as  to  be  used  in  carrying  on  "  any  trade,  business,  or  voca- 
tion which,  according  to  the  by-laws  and  conditions,  classes 
of  hazards  or  rates  thereto  annexed,  would  increase  the 
hazard,"  without  the  consent  of  the  company,  in  writing, 
it  should  avoid  the  policy.  In  an  action  on  such  policy 
the  defendants  averred,  that  the  plaintiff  had  leased  the 
house,  and  that  at  time  of  its  destruction  it  was  unoccu- 
pied, and  that  this  change  was  made  without  their  consent, 
increased  the  risk,  and  therefore  avoided  the  policy.  Jleldy 
that  when  the  premises  became  vacant  by  reason  of  a  ten- 
ant leaving  them,  it  was  not  devoting  them  to  a  "  trade, 
business,  or  occupation,"  which  increased  the  hazard ;  and 
if  there  were  anything  in  the  by-laws  or  conditions,  which 

})revented  the  owner  from  leasing  the  premises,  or  from 
eaving  them  unoccupied,  the  answer  should  have  averred  it. 
Hawkes  v.  Dodge  County  Mut.  Ins.  Co.  11  Wis.  188. 
1860. 

§  52.  The  application  contained  the  following  inter- 
rogatory :  "How  are  the  several  stories  occupied  ?  which 
applicant  had  ans^vered  as  follows:  "Unoccupied,  but 
to  be  occupied  by  a  tenant."  The  policv  provided  that 
"  when  a  policy  is  issued  on  a  survey  and  description  of 
the  property,  such  survey  and  description  shall  be  deemed 
to  be  a  part  of  the  policy,  and  a  warranty  on  the  part  of 
the  assured."  Ilekl,  that  the  first  part  of  the  assured's  an- 
swer, "  unoccupied,"  was  a  full  and  complete  response  to 


mKX\ 


USE    AND    OCCUPATION. 


685 


the  inquiry,  and  that  the  second  part, "  but  to  be  occupied 
by  a  tenant,"  was  not  to  be  considered  as  a  warranty  that 
the  house  should  be  occupied  by  a  tenant,  but  as  a  reser- 
vation on  the  part  of  the  applicant  of  the  right  to  have  it 
so  occupied,  and  to  avoid  the  inference  that  it  was  to  re- 
main unoccupied.  But  even  if  regarded  as  a  warranty, 
yet,  as  no  time  was  specified  when  such  occupancy  was  to 
commence,  the  warranty  would  not  be  broken  if  such  occu- 
pancy was  procured  within  a  reasonable  time  ;  and  what 
was  a  reasonable  time,  was  a  question  properly  for  the 
jury.    Hough  v.  City  Fire  Ins.  Co.  29  Conn.  10.     1860. 

§  53.  Where  a  policy  is  silent  in  reference  to  the  use 
of  premises  adjoining  those  insured,  and  there  has  been  no 
representation  or  suppression  of  any  fact  relatiug  to  the 
subject-matter,  the  insured  has  the  same  right  to  use  his 
adjoining  property,  and  is  governed  by  the  same  obliga- 
tions in  respect  to  its  use,  as  any  other  owner  would  be. 
Miller  v.  Western  Farmers'  Mut.  Ins.  Co.  1  Hand.  Ohio, 
208.     1854. 

§  54.  The  occasional  use  of  articles  denominated 
hazardous,  or  the  occupation  of  the  premises  insured  for 
purposes  called  hazardous  in  the  conditions  annexed  to  a 
policy,  will  not  avoid  the  policy  if  such  an  occupation  was 
connected  with  the  buildings  insured.  There  must  be  a 
direct  appropriation  of  the  property  to  such  use  or  purpose 
before  tne  covenaht  is  broken.  And  if,  during  such  occa- 
sional or  temporary  use,  the  property  should  be  destroyed, 
the  underwriters  will  still  be  held,  if  there  is  no  fraud  on 
the  part  of  the  insured.  Merchants'  &  Manufacturers' 
Mut.  Ins.  Co.  V.  Washington  Mut.  Ins.  Co.  1  Hand.  Ohio, 
408.     1855. 

§  55.  In  his  application  for  insurance,  to  the  question. 
Who  occupies  the  huilding  ?  the  owner  answered,  "  Will 
be  occupied  by  a  tenant."  Heldy  in  a  suit  on  the  policy  to 
recover  for  loss,  that  the  answer  was  not  a  stipulation  that 
the  building  should  be  so  occupied,  but  was  rather  the 
representation  of  his  expectation  that  it  should  be  occupied 
by  a  tenant,  and  not  by  himself.  HeiTick  v.  Union  Mut. 
Fire  Ins.  Co.  48  Me.  558.     1860. 

§  56.    Where  the  form  of  an  application  for  a  fire  policy 


\\ 


I 


686 


USE    AND    OCCUPATION. 


as  prescribed  by  the  company  contains  a  question  to  be 
answered  by  the  applicant  as  to  the  mode  in  which  the  build- 
ing offered  for  insurance  is  to  be  occupied,  and  the  agent 
of  the  insurance  company  is  infonned  by  the  applicant 
of  the  intended  mode  of  occupation,  but  fills  out  the  ap- 
plication without  inserting  any  answer  to  that  question, 
the  company,  by  issuing  the  policy  without  such  answer, 
waives  it,  and  cannot  afterwards  object  to  any  use  of  the 
premises  of  which  the  agent  was  fairly  notified.  Otlier- 
wise,  where  the  agent  has  knowledge  only  that  the  build- 
ing has  been  at  some  previous  time  used  for  a  hazardous 
business,  ])ut  does  not  know  that  it  is  being  used  in  that 
manner  at  tlie  time  of  the  application,  or  that  it  is  the  cus- 
tom or  intention  of  the  applicant  so  to  use  it.  Dodge 
County  Mut.  Ins.  Co.  v.  Rogers,  12  A\  is.  337.     18G0. 

§  57.  A  policy  contained  the  condition  that  "unoccu- 
pied premises  must  be  insured  as  such.  Houses,  barns,  or 
other  buildings  insured  as  occupied  ])remises  or  on  occupied 
premise^:.  the  policy  l>ecomes  void  Avhen  the  occupant  person- 
ally vacates  the  premises,  unless  immediate  notice  be  given 
to  this  company  and  additional  premium  paid."  The  policy 
was  silent  as  to  the  occupancy  of  the  building  insured,  but 
'the  agent  who  issued  the  policy  knew  that  the  building  was 
then  occupied.  The  occupant  afterwards  moved  out,  and 
the  building  remained  imoccupie<l  seven  months,  "when  it 
was  destroyed  l)y  a  fire  the  origin  of  which  was  unknown. 
The  insured  knew  that  the  premises  were  vacant,  but 
gave  no  notice  of  the  fact  to  the  company,  and  did  not 
pay  or  oifer  to  pay  an  additional  j)remium.  Held,  that 
the  policy  had  become  »'oid.  Wustum  v.  City  Fire  Ins. 
Co.  15  \V'is.  138.     180l>. 

§  58.  Where  a  policy  of  insurance  j)rovided,  that 
should  the  premises  insured  be  applied  during  the  term  of 
the  insurance  to  any  of  certain  prohibited  uses,  the  policy 
then  and  from  thenceforth,  so  long  as  the  same  should  be 
so  approjmated,  applied  or  used,  should  cease  and  be  of  no 
force  or  effect.  Jield,  that  the  apj)lication  of  the  property 
to  a  prohibited  use,  within  the  term,  would  not  affect  the 
right  of  tlie  assured  to  recover  in  case  of  a  loss,  if,  at  the 
time  of  tlie  loss,  the  property  was  not  being  so  improperly 


USE    AND    OCCUPATION. 


687 


applied  or  used,  and  it  did  not  appear  tliat  such  antecedent 
misapplication  increased  the  risk  or  contributed  to  the 
loss.  New  England  Fire  <fe  Marine  Ins.  Co.  v.  Wetmore, 
32  111.  221.     1863. 

§  50.  A  policy  of  insurance,  issued  ujion  a  dwelling- 
house  occupied  by  tenants,  and  containing  a  provision  that 
"  the  policy  becomes  void  when  the  occupant  personally 
vacates  the  premises,  unless  immediate  notice  be  given  to 
this  company  and  additional  premium  paid,"  will  become 
void  if  the  building  is  vacated,  and  the  only  notice  given 
thereof  is  to  an  agent  of  the  company  whose  authority  is 
limited  "  to  take  applications  and  oountersign  policies,  to 
collect  and  receive  cash  for  premiums,  and  to  issue  a 
'  binder '  on  special  har^ards  for  ten  days,"  and  no  additional 
premium  is  paid;  and"  it  is  immaterial  that  the  insured 
did  not  know  the  extent  of  the  agent's  authority.  Har- 
i-ison  V.  City  Fire  Ins.  Co.  9  Allen,  Mass.  231.     1864. 

§  60.  Where  a  policy  ofinsurance  upon  a  triphammer 
shop,  with  the  machineiy  therein,  contained  a  provision 
that  the  policy  should  be  void  if  the  building  remained 
unoccupied  over  thii*ty  days  without  notice ;  Held^  proper 
to  instruct  the  juiy  that  it  is  not  sufficient  to  constitute 
occupancy  that  the  tools  remained  in  the  shop,  and  that 
the  plaintiff's  son  went  through  the  shop  almost  every 
day  to  look  around  and  see  if  tilings  were  right,  but  some 
practical  use  must  have  been  made  of  the  building ;  and 
if  it  thus  remained  without  any  practical  use  for  the  space 
of  thirty  days,  it  was,  within  the  meaning  of  the  policy, 
an  unoccupied  building  for  that  time,  and  the  policy  be- 
came void.  Keith  v.  Quincy  Mut.  Fire  Ins.  Co.  10  Allen, 
Mass.  228.     1865. 

§  61.  A  statement  in  a  policy  as  to  the  manner  in 
which  the  building  insured  is  occupied,  is  not  a  warranty 
that  it  shall  continue  to  be  so  used  during  the  policy.  It 
is  a  warranty  only  as  to  the  present  use.  To  make  a  con- 
tinuing warranty  it  must  be  so  expressed  by  apt  words. 
Smith  V.  Mechanics'  <fe  Traders'  Fire  Ins.  Co.  29  How. 
N.  Y.  384.     1865. 

§  62.     Where  on  account  of  the  character  of  the  use  \^ 


688 


USE    AND    OCCUPATION. 


of  the  property  insured  special  rates  are  required  to  be 
paid  and  tne  policy  contains  no  warranty  of  continued  use, 
a  change  of  such  use,  keeping  within  the  same  character 
of  risk,  will  not  avoid  the  policy  where  the  risk  is  not 
thereby  increased.  Smith  v.  Mechanics'  &,  Traders'  Fire 
\^    Ins.  Co.  32  N.  Y.  399.     1865. 

\j  §  63.  "Where  a  policy  of  insurance  describes  the  prop- 
--  €rty  insured  as  being  a  **  two-story  frame  building  used 
*^  for  winding  and  coloring  yarn  and  for  the  storage  of  spun 
yam,"  it  does  not  thereby  warr:  ,at  that  such  building  is  to 
continue  to  be  thus  used.  Such  statement  is  only  a  war- 
ranty as  to  the  present  use,  and  an  insurer  wishing  to  pro- 
tect himself  by  a  continuing  warranty  as  to  the  future  use 
of  a  building  must  do  so  by  langua^  plainly  importing 
such  intent.  Smith  v.  Mechanics  <fe  Traders'  Fire  Ins.  Co. 
32  N.  Y.  399.     1865. 

§  64.  Where  an  insurance  is  made  upon  goods  in  a 
specified  building,  generally,  so  as  to  cover  goods  in  any 
part  of  it,  the  insured  cannot  escape  the  consequences  of 
allowing  a  hazardous  business  to  be  carried  on  in  any  part 
of  the  building  by  tenants  by  showing  that  he  only  occu- 
pied a  part  of  the  building,  and  not  the  whole  as  described 
in  the  policy.  Appleby  v.  Firemen's  Fund  Ins.  Co.  45 
Barb.  N.  Y.  454.     1866. 

§  65.  A  policy  provided  that  "  any  change  as  to 
tenants  or  occupancy  must  be  notified  to  the  company. 
HeM,  a  temporary  vacancy,  by  one  tenant  going  out  with- 
out another  coming  in,  is  not  a  change  of  tenancy  requir- 
ing notice.  McAnnally  v.  Somerset  Mut.  F.  Ins.  Co.  2 
Pittsburg  Rep.  189.     1860. 

§  66.  Building  insured  as  a  dwelling-house  is  for  a 
long  time  before  the  fire  untenanted.  The  policy  provided 
that  "  when  the  condition  or  circumstances  of  the  property 
should  be  by  the  act  of  the  assured,  his  agent,  or  tenant, 
in  any  way  so  changed  as  to  materially  increase  the  risk, 
the  policy  should  be  void."  Held,  non-occupation  was  not 
such  a  change  ;  it  was  still  a  dwelling-house,  tenanted  or 
not.  Gilliat  v.  Pawtucket  Mut.  F.  Ins.  Co.  8  R.  I.  282. 
1866. 


USE    AND    OCCUPATION. 


C89 


equired  to  be 
continued  use, 
3ame  character 
he  risk  is  not 
Traders'  Fire 


ribes  the  prop- 
building  used 
torage  of  spun 
I  building  is  to 
is  only  a  war- 
vishing  to  pro- 
the  future  use 
nly  importing 
s'  Fire  Ins.  Co. 


on  goods  in  a 
goods  in  any 
msequences  of 
on  in  any  part 
.  he  only  occu- 
e  as  described 
d  Ins.  Co.  45 

change  as  to 
the  company. 
)ing  out  with- 
nancy  requir- 
F.  Ins.  Co.  2 


louse  is  for  a 
)licy  provided 
f  the  property 

nt,  or  tenant, 
•ease  the  risk, 
•tttion  was  not 
},  tenanted  or 

8  R.  I.  282. 


§  67.  Insurance  on  stock  of  liquors  in  a  building 
occupied  as  a  liquor  store.  The  assured  kept  the  licjuora 
for  sale,  and  sold  them  without  license,  making  him  liable 
to  punishment,  and  his  stock  to  confiscation  for  nuisance. 
There  was  no  clause  against  unlawful  use  in  the  policy. 
Held^  that  the  insurance  being  to  protect  illegal  acts  and 
make  safer  a  prohibited  traffic  of  the  assured  himself,  the 
contract  was  not  collateral  and  independent  of  the  illegal 
acts,  as  it  was  in  Boardman  v.  Memmack  Ins.  Co.  (§23 
above),  and  the  policy  is  void.  Kelly  v.  Home  Ins.  Co. 
et  al  97  Mass.  288.     1867. 

§  68.  Per  Strong,  J.,  at  Nisi  Prius.  Calling  the 
building  "  store-house "  is  no  warranty  that  nothing  but 
storing  shall  be  done  in  it.  Franklin  F.  Ins.  Co.  v.  Brock, 
57  Pa.  St.  74.  1868.  The  application  made  part  of  the 
policy,  and  a  warranty  stated,  in  answer  to  a  question  as 
to  use,  "  it  is  used  for  stores ; "  and  as  to  "  how  many 
tenants  ? "  answered,  "  two."  The  preliminary  proofs  de- 
scribed the  second  story  and  garret  as  occupied  ds  sleeping 
rooms.  Held,  no  proof  that  more  than  two  divers  tenants 
slept  in  the  building,  for  the  statement  in  the  proofs  would 
be  satisfied  if  only  the  tenants  in  the  two  stores  slept  in 
the  rooms  above.  Peoria  M.  &  F.  Ins.  Co.  v.  Perkins,  16 
Mich.  380.     1868. 

§  69.  Calling  the  premises  a  "  dwelling-house  "  is  a 
description,  not  a  stipulation,  and  is  no  engagement  that 
they  are  occupied,  but  only,  that  when  occupied,  it  shall 
be  as  a  dwelling-house. 

And  per  Strong,  J.,  That  an  insurance  on  an  "  occupied 
dwelling-house  "  is  no  engagement  against  future  vacancy. 
Cumberland  Val.  Mut.  Pr.  Co.  v.  Douglas,  58  Pa.  St.  419. 
1868. 

§  70.  Clause  requiring  "  any  change  in  the  nature  of 
the  occupation"  to  be  notified  to  the  company.  Held, 
mere  ceasing  to  occupy  was  not  within  the  condition,  which 
meant  an  application  of  the  premises  to  a  purpose  different 
from  the  one  described ;  that  where  the  jury  find  in  favor 
of  a  party  charged  with  a  criminal  offense,  the  Court  will 
rarely  grant  a  new  trial,  in  the  absence  of  misdu'ection. 
Goulii  V.  British  Am.  Ass.  Co.  27  U.  C,  Q.  B.  473.  1868. 
44 


V 


690 


USE    AND    OCCUPATION. 


m 


§  71.  The  teiin  "  cftrnenters  "  among  the  enumeration 
of  specially  hazardous,  refers  to  the  occupancy  of  the  in- 
sured premises,  not  to  their  employment  in  the  neighbor- 
hood, or  in  adding  to  the  insured  buildings,  not  using 
them  to  Avork  in,  nor  can  expert  testimony  or  understand- 
ing l»y  the  company's  office  ))e  allowed  to  explain  the  term. 
Washington  Ins.  Co.  v.  Davison  et  al  30  Md.  91.     1868. 

§  72.  The  classes,  "  non-hazardous,"  "  hazardous," 
"  extra  hazardous,"  «fec.,  are  well  understood,  distinct  classes, 
and  a  policy  "on  the  merchandise,  hazardous  and  not 
hazardous,"  does  not  use  those  terms  in  a  general  sense, 
and  is  voided  by  keeping  of  an  article  like  turpentine, 
classed  under  extra  hazardous.  (Able  dissenting  opmion  by 
Mason,  J.)  Pindar  v.  C'ontiuental  Ins.  Co.  38  N.  Y.  364. 
1868. 

§  73.  A  policy  on  a  tannery  Viithout  steam  is  made 
subject  to  the  classes  and  rates  in  the  by-laws.  One  class 
was,  "  Tanneries  without  Steam."  Steam  was  subsequently 
added.  On  the  loss  occurring,  evidence  cannot  be  allowed 
that  the  steam  did  not  increase  the  risk,  nor  cause  the  lire ; 
because  that  is  taking  it  out  of  the  stipulated  class  of 
hazards,  which,  being  thus  the  ai^reed  test  of  the 
amount  of  risk,  excludes  any  test  of  opinion  or  testimony. 
Diehl  V.  Adams  Co.  Mut.  Ins.  Co.  58  Pa.  St.  443.     1868. 

§  74.  Policy  on  a  factory  which  was  only  run  part  of 
the  jear.  In  the  application  the  answei's  to  the  interroga- 
tories that  they  had  a  force-pump ;  they  ran  the  mill  such 
and  such  hours ;  had  a  watchman  all  night ;  are  such  as 
are  appropriate  only  to  the  time  during  which  the  mill 
was  run.  Ileld^  a  representation  of  the  then  existing  con- 
dition of  things,  or  one  only  j)ernianent  according  to  the 
usual  course  of  the  business,  not  an  undertaking  to  con- 
tinue to  use  the  )iroperty  in  that  niani:er,  contrary  to  the 
usage  of  the  business  (like  an  insurance  on  a  steamboat 
answering  as  to  the  hours  s!ie  is  run,  when  in  winter  she 
is  really  laid  up).  Company  is  liable  during  the  idle 
season.  May  v.  Buckeye  Mut.  Ins.  Co.  25  Wis.  291. 
1870. 

§  75.     The  application  required  a  description  of  the 


;iii 


USE     AND    OCCUPATION. 


091 


'i  enumeration 
lev  of  the  in- 
the  neighbor- 
's, not  usinq 
r  understauu- 
lain  the  term, 
[d.  91.     1868. 

"  hazardous," 
istinct  classes, 
lous  and  not 
general  sense, 
:e  turpentine, 
ng  opmion  by 
38  N.  Y.  364. 


team  is  made 
s.  One  class 
subsequently 
lot  be  allowed 
3ause  the  fire ; 
ated  class  of 
test  of  the 
or  testimony. 
.  443.     1868. 

y  run  part  of 
the  interroga- 
the  mill  such 
;  are  such  as 
lich  the  mill 

existing  con- 
)rding  to  the 
iking  to  con- 
ntrary  to  the 

a  steamboat 
in  winter  she 
ring  the  idle 
25   Wis.   291. 


iption  of  the 


occupancy,  and  whether  any  manutactorv  was  carried  ou. 
The  policy  described  the  occupancy  asbemg  l)y  machinery 
for  making  barrels.  A  further  condition  was  that,  if  at 
any  time  thereafter,  the  premises  should  be  appropriated 
or  used  for  the  trade  of  *  *  *  *  ,  or  any  manufac- 
tory requiring  heat,  «fee.,  the  policy  should  be  voi<led 
during  such  appropriation.  Held,  that,  construing  both 
clauses  i on^ether,  the  written  portion  of  this  policy  is  de- 
scriptive only,  or  a  warrnnty  ui  jn-esenti — not  a  continuing 
warranty — of  present,  not  of  future  use,  and  that  the  sec- 
ond part  was  the  sole  agreement  for  future  use,  and  the 
policy  was  only  suspended  while  used  for  making  ])oxes. 
I'hat  the  putting  in  a  lathe  to  make  broom  handles 
the  day  before  the  fire,  which  had  never  been  used,  and 
the  leaving  the  circular  saws  used  for  box  making,  although 
for  future  use,  is  not  such  an  approj)riation  for  a  prohibited 
use  as  is  contemplated ;  a  present  use  and  occupation  in 
conducting  the  prohibited  manufacture*  being  meant.  U. 
S.  F.  ifc  M.  Ins.  Co.  of  Baltimore  v.  Kimberly,  34  Md.  224. 
1870. 

§  70.  Insurance  on  "  frame  dwelling-house,  occupied 
by  tenants ;"  clause  of  avoidance  if  "  appropriated  to  any 
other  purposes  than  those  herein  mentioned,  or  the  risk 
otherwise  increased  by  the  act "  or  knowledge  of  assured, 
unless  consent  of  the  company  is  obtained.  The  building 
liad  been  vacant  more  than  a  year  before  the  fire.  Held, 
the  leaving  it  unoccupied  did  not  avoid  the  policy,  unless 
it  increased  the  risk,  which  is  for  the  jury  to  say.  Luce 
V.  Dorchester  Mut.  Fire  Ins.  Co.  105  Mass.  297.     1870. 

§  77.  It  is  no  answer  to  a  defence  by  the  company 
based  on  the  keeping  of  forbidden  inflammables  by  the 
assured,  that  the  clauses  forbidding  them  were  unusual  in 
policies  ;  were  not  specially  pointed  out  to  him,  and  that 
he  was  not  aware  he  was  breaking  any  condition.  Reeve, 
Case  «fe  Co.  v.  Phoenix  Ins.  Co.  23  La.  An.  219.     1871. 

§  78.  The  occupant  of  the  premises  was  temporarily 
absent,  with  his  family,  and  left  the  house  in  charge  of  one  B. 
for  him.  J/c^d,  no  such  "  change  of  possession  "  as  to  avoid 
the  policy  [the  insured  is  not  expected  to  remain  con- 
stantly on  the  premises].  Shearman  v.  Niagara  Fire  Ins. 
Co.  (1  Sickles)  46  N.  Y.  526.     1871. 


602 


VALUE. 


§  79.  A  statute  that  any  change  in  use  or  occupation 
shall  not  affect  the  contract,  the  risk  not  being  increased ; 
a  change  from  occupancy  to  disuse  is  within  the  statute, 
and  therefore  by  its  terms  not  to  be  fettered  by  the  policy's 
provisions  on  that  subject.  A  clause  avoiding  the  policy 
if  the  premises  become  vacant  more  than  thii-ty  days  is  a 
condition,  not  a  limitation  as  to  time,  and  the  statute  that 
a  breach  of  any  of  the  conditions  in  the  aT)sence  of  fraud 
shall  not  affect  the  contract  applies.  Cannell  v.  Phcenix 
Ins.  Co.  59  Me.  582.     1871. 

See  Concealment,  §  20.  Construction,  32,  34, 39.  Description  of  Property- 
Insured,  12,  So,  26.  Estoppel.  15.  Increase  of  Risk,  13,  25,  28,  30,31,  47,  52. 
Parol  Evidence,  27,  33.  Pleading  and  Practice,  18,  62.  Preliminary  Proofs, 
48.  Questions  for  Court  and  Jur\',  6.  Responsibility  of  Absured  for  Act  of 
Other?,  9.  10.  Risk,  26,  38,  39.  'Storing  and  Keeping,  2,  4,  8, 11,  18,  19,  20. 
Waiver,  35.  Warranty  and  Representation,  22.  Written  Portion  of  Policy, 
1,3. 


VALUE. 

§  1.  Plaintiff  applied  for  insurance  on  a  factory,  rep- 
resenting that  an  insurance  of  $15,000  had  already  been 
taken  on  the  property,  which  was  valued  at  $19,000.  The 
company  declined  on  the  grf>uud  that  there  was  insurance 
enough  on  the  property.  The  plaintiff  then  represented 
that  additions  had  been  made  to  the  factory  ftilly  equal  to 
$10,000,  and  upon  the  faith  of  this  statement,  a  policy 
was  issued.  This  last  statement  turning  out  wholly  un- 
tnie ;  Held,  that  the  policy  was  void,  and  that  it  made  no 
difference  that  the  misrepresentation  was  made  by  an 
agent,  and  by  mistake.  Carpenter  v.  American  Ins.  Co.  1 
Story,  C.  C.  V.  S.  57.     1839. 

§  2.  An  over-estimate  of  $4,000  in  the  value  of  the 
property  is  a  e^ross  over- valuation,  that  avoids  the  policy, 
though  a  sliglit  over-estimate,  such  as  might  reasonably 
be  accounted  for  from  difference  of  opinion,  would  not 
have  done  so.  Catron  v.  Tennessee  Ins.  Co.  6  Humph. 
Tenn.  170.     1845. 


VALUE. 


693 


or  occupation 
Ing  increased ; 
n  the  statute, 
3y  the  policy's 
ng  the  policy 
iriy  days  is  a 
e  statute  that 
lence  of  fraud 
11  V.  Phcenix 


iption  of  Property 
,28,80,31,47,52. 
reliminary  Prooft, 
V.i95ured  for  Act  of 
4,8,11,18,19,  20. 
Portion  of  Policy, 


a  factory,  rep- 
already  been 
$19,000.  The 
was  insurance 
a  represented 
ftilly  equal  to 
iient,  a  policy 
ut  wholly  un- 
at  it  made  no 
made  by  an 
can  Ins.  Co.  1 

}  value  of  the 
Ids  the  policy, 
lit  reasonably 
n,  would  not 
^o.  6  Humph. 


§  3.  The  valuation  is  material  to  the  rist ;  and  mis- 
representation as  to  value  avoids  the  policy.  Wilbur  v. 
Bowditch  Mut.  Ins.  Co.  10  Cush.  Mass.  446.     1852. 

§  4.  If  an  applicant  for  insurance,  in  reply  to  inquiry 
in  application,  which  is  made  part  of  the  policy,  fraudu- 
lently over-value  the  property  insured,  the  policy  issued 
upon  such  application  may  be  avoided  by  the  company  on 
that  ground.  Hersey  v.  Merrimack  County  Mut.  Ins.  Co. 
7  Fost.  N.  H.  149.     1853. 

§  5.  Policy  on  goods,  running  from  $3,000  to  $3,000, 
and  so  represented  by  assured.  Policy  stipulated  that  the 
"  survey  is  made  part  of  the  policy,  and  warranty  on  the 
part  of  the  assured."  The  application  stipulated  that  the 
answers  therein  given  were  a  just,  full  and  true  statement 
of  all  facts  "  so  far  as  material  to  the  risk."  Ileldy  that 
taking  the  clauses  together,  the  warranty  was  not  of  the 
literal  truth  of  the  facts,  but  only  so  far  "as  material  to 
the  lisk ; "  so  that  if  assured  had  not  the  amount  of  goods, 
but  intended  his  stock  to  be  about  these  figures,  and  as 
the  policy  was  plainly  an  open  one,  and  the  underwriter 
was  to  pay  only  three-fourths  the  actual  loss,  the  variation 
was  immaterial,  and  the  policy  was  valid.  Lee  v.  Howard 
Fire  Ins.  Co.  11  Cush.  Mass.  324.     1853. 

§  6.  A  condition  in  a  policy  of  insurance  "  that  a 
false  description  1by  the  assured  of  a  building  insured,  or 
of  its  contents,  or  in  a  valued  policy,  an  over- valuation* 
shall  render  void  a  policy  issuing  upon  such  description  or 
valuation,"  does  not  apply  to  an  over-valuatioD  of  goods 
insured  under  an  open  policy.  Lee  v.  Howard  Fire  Ins. 
Co.  11  Cush.  Mass.  324.     1853. 

§  7.  A  serious  over- valuation,  knowingly  made,  upon 
work  not  done  or  a  subject  not  in  existence,  and  that  fact 
not  disclosed,  is  a  sufficient  cause  for  avoiding  the  policy  ; 
but  a  small  ov^er- valuation,  such  as  might  reasonably  be 
accounted  for  in  difference  of  opinion,  is  not.  Protection 
Ins.  Co.  V.  Hall,  15  B.  Monroe,  Ky.  411.     1854. 

§  8.  The  assured  effected  an  insurance  with  the 
defendants  on  certain  buildings  for  $1,100,  stating  their 
value  to  be  $3,000.    In  an  action  on  this  policy,  it  ap- 


694 


VALUE. 


I  S>! 


pearetl,  that  a  few  days  before,  he  had  insured  the  same 
houses,  toQ^ether  -with  a  driving  shed,  worth  $400,  in 
another  office  for  $900,  and  had  then  valued  the  whole  at 
from  $1,200  to  $1,400.  The  evidence  as  to  the  actual 
value  was  contradictory,  and  the  great  difference  in  the 
assured's  two  valuations  was  not  explained.  The  jury 
having  found  for  the  plaintiff;  HeM^  that  the  evidence 
supported  a  plea  of  fraudulent  over-valuation,  and.  a  new 
ti'ial  was  granted,  with  costs  to  abide  the  event.  Note — 
This  case  has  since  been  atrain  tried,  and  a  second  verdict 
having  been  I'endered  for  the  assured,  on  evidence  not  dif- 
ferring  materially  from  that  given  at  the  first  trial,  the 
court  refused  to  disturb  it.  Dickson  v.  Equitable  Fire 
Assurance  Co.  18  Upper  Canada,  Q.  B.  240.     1859. 

§  9.  It  not  appearing  that  an  over-valuation  was 
mala  Jides  and  not  by  error  of  judgment,  the  court  will 
not  set  aside  a  verdict,  the  question  of  fraud  being  for  the 
jury.    Rice  w  Provincial  Ins.  Co.  7  U.  C,  C.  P.  548.    1858. 

§  10.  The  application  required  the  true  valu£,  <fec., 
so  far  as  material  to  the  risk.  There  being  an  over-valuation 
by  the  assured ;  Held,  that  as  the  policy  limited  a  recovery 
to  two-thirds  of  the  actual  cash  value,  the  over- valuation  by 
the  assured  was  not  material  to  the  risk,  and  in  reality 
operated  on  the  premium  in  a  way  beneficial  to  the 
company.  And  an  over-valuation,  resulting  from  difterence 
of  opinion,  is  no  fraud.  Bonham  v.  Iowa  Central  Ins. 
Co.  25  Iowa,  328.     18C8. 

§  11.  An  over-valuation  in  a  "valued"  policy  was  to 
render  it  void,  V»y  a  stipulation  in  the  policy.  This  was 
not  a  valued  policy,  l)ut  a  question  as  to  value  was  asked 
in  the  survey.  Ileld^  the  statement  as  to  value  was  not 
material  to  the  risk.  Cox  v.  ^tna  Ins.  Co.  29  Ind. 
586.     1868. 

§  12.  The  valuation  is  not  one  of  those  statements 
warranted  to  Vje  true,  in  the  absence  of  express  condition 
in  the  policy ;  nor  can  even  a  too  \\\<*\\  valuation  be  said  to 
be  so  far  material  as  to  vitiate  a  policy,  where  the  agent 
has  carefully  examined  the  premises ;  he  must  be  supposed 
to  know  or  inquire  as  to  values  of  property.  An  over- 
valuation is,  however,  a  circumstance  to  be   considered 


VALUED   POLICY. 


695 


)n,  and  a  new 


when  tlje  defense  is  a  fraudulent  fire.     Ins.  Co.  of  N. 
Amer.  v.  McDowell,  50  111.  120.     1869. 

§  13.  Furniture  insured  at  its  full  value  witli  tbe  in- 
surer's knowledge,  and  kept  so  insured  for  several  years, 
its  depreciation  in  value  from  wear  and  its  situation  does 
not  invalidate  the  policy  for  over-insurance.  Gerhauser  v. 
N.  B.  &  M.  Ins.  Co.  7  Nevada,  174.     1871. 

§  14.  The  application  being  made  part  of  the  contract, 
the  representation,  in  answer  to  a  question  as  to  value,  is 
material,  even  though  the  policy  is  to  pay  two-thirds  the 
real  value  or  less ;  and  if  material,  representations  must  be 
perfectly  true  ;  the  policy  is  avoided  if  they  are  false,  hbw- 
ever  honestly  made,  because  a  representation  of  a  fact,  not 
of  an  opinion.  Babbitt  v.  Liverpool,  Lond.  &  Globe  Ins. 
Co.  66  N.  Ca.  70.     1872. 

See  Application,  §  17.  Evidence,  13,  35,  52.  Other  Insurance,  13. 
Title,  18.  Two-thirds  or  Three-fourths  Clause,  ll.  Warranty  and  Represen- 
tation, 20.    What  Property  is  Covered  by  the  Policy,  25. 


VALUED  POLICY. 

§  1.  Where  there  is  an  absolue  loss  of  an  article 
distinctly  valued  in  the  policy,  the  loss  is  to  be  estimated 
according  to  the  valuation ;  as  when  policy  read,  "  380 
kegs  tobacco,  worth  $9,600,"  and  157  kegs  were  lost; 
Heul,  that  the  assured  was  entitled  to  receive  the  propor- 
tionate value  of  $9,600,  and  not  merely  the  cost  of  manu- 
facture, with  a  percentage  added.  Harris  v.  Eagle  Ins. 
Co.  5  Johns.  N.  Y.  368.     1810. 

§  2.  A  policy  of  insurance  against  fire,  where  the  con- 
tract states  that  the  company  have  insured  eight  thousand 
five  hundred  dollars  on  one  brick  house,  and  two  wooden 
ones,  is  not  a  valued  policy.  The  words,  "  valued  at,"  are 
invariably  used  where  the  intention  of  the  parties  is  to 
make  the  estimate  conclusive.  Wallace  v.  Insurance  Co. 
2  La.  559.     1831 


696 


VALUED    POLICY. 


:  I 


i 


§  3.  "Where  a  policy  of  insurance  against  fire  covers 
fifteen  thousand  dollars  of  the  property  insured,  and  a 
second  policy  is  taken  out  of  another  office,  on  the  same 
property,  as  a  valued  one,  which  is  endorsed  on  the  first 
policy;  it  cannot  have  the  effect  of  putting  the  first  office 
duriori  cas2i,  or  to  convert  its  policy  from  an  open,  to  a 
valued  one.  Millaudon  v.  Western  Marine  Fire  Ins.  Co. 
9  La.  27.     1835. 

§  4.  A  policy  insuring  $1,700  on  a  mill  and  fixed 
machinery,  and  $150  on  movable  machinery  therein,  pro- 
ceeded in  written  words  as  follows  :  "  Said  insured  being 
the  lessee  of  said  mill  for  one  year  fiom  November  1st, 
1850,  and  having  paid  the  rent  therefor  of  $2,171,  which 
interest  diminishing  day  by  day  in  proportion  to  the  whole 
rent  for  the  year  is  liereby  insured."  JlelJ,  that  the  policy 
was  .a  valued  one,  although,  in  a  printed  part  of  the  instru- 
ment, there  was  a  provision,  that  the  loss  or  damage  should 
be  estimated  according  to  the  true  and  actual  cash  value 
at  the  time  such  loss  or  damage  should  happen.  Cushman 
V.  North  Western  Ins.  Co.  34  Me.  487.     1852. 

§  5.  In  the  application  of  the  assured  the  value  of  the 
property  was  stated,  and  in  the  policies  issued  were  these 
words :  "  The  amount  insured  being  not  more  than  three- 
fourths  the  value  of  said  property,  as  appears  by  the  pro- 
posal of  the  said  assured."  Jlehl,  that  these  were  valued 
policies  in  the  sense  in  which  that  term  is  applied  to  poli- 
cies of  fire  insurance.  Nicliols  v.  Fayette  Mut.  Fire  Ins. 
Co.  1  Allen,  Mass.  63.     1861. 

§  6.  A  Tabbed  policy  of  insurance  is  not  one  which 
estimates  merely  the  value  of  the  ])roperty  insured,  but 
which  values  the  loss,  and  is  equivalent  to  an  assessment 
of  damages  in  the  event  of  a  loss.  Lvcoming  Ins.  Co.  v. 
Mitchell,  48  Penn.  St.  367.     1864. 

§  7.  Under  St.  64,  c.  196,  a  covenant  in  the  applica- 
tion against  holding  the  valuation  conclusive,  not  being 
embodied  in  the  policy,  is  not  part  of  the  contract.  Luce 
V.  Dorchester  Mut.  l^re  Ins.  Co.  105  Mass.  297.     1872. 


See  Dainnge<<,  §  5.     Evidence,  29.    Two-thirJs  or 
2,3,7,17,21,23. 


.-ibii.'ths  Clause,  1, 


inst  fire  covers 
insured,  and  a 
e,  oii  the  same 
ed  on  the  first 
the  first  office 
an  open,  to  a 
e  Fire  Ins.  Co. 

mill  and  fixed 
ly  therein,  pro- 
insured  being 
November  1st, 
'  $2,171,  which 
)n  to  the  whole 
that  the  policy 
•t  of  the  instru- 
damage  should 
ual  cash  value 
)en.     Cushman 

Ki) 

;he  value  of  the 
ued  were  these 
ore  than  three- 
ars  by  the  pro- 
se were  valued 
pplied  to  poli- 
Mut.  Fire  Ins. 

lot  one  which 

y  insured,  but 

an  assessment 

ng  Ins.  Co.  V. 

in  the  applica- 

sive,  not  being 

Dntract.    Luce 

207.     1S72. 

v-ibii,-tU9  Clause,  1, 


VENUE. 

§  1.  By  the  Revised  Statutes  of  Massachusetts,  c.  90, 
§§14,  16,  a  foreigner  or  inhabitant  of  another  State,  may 
bring  suit  in  any  county  of  the  State  against  an  insurance 
company  of  Massachusetts,  although  the  company's  place 
of  business  is  in  the  city  of  Boston,  in  the  county  of  Suffolk, 
and  all  its  annual  meetings  are  held  there.  Allen  v.  Pa- 
cific Ins.  Co.  21  Pick.  Mass.  257.     1838. 

§  2.  Conditions  of  mutual  company  in  one  State  au- 
thorized suit  to  be  brought  in  a  certain  county  in  another 
State,  and  suit  to  be  brought  within  ninety  days  from  the 
time  the  directors,  after  notice  of  loss,  should  determine  its 
amount.  Held,  that  courts  of  Maine  were  not  precluded 
from  the  jurisdiction  of  actions  brought  to  recover  losses, 
in  cases  where  no  such  determination  of  the  amount  of  the 
loss  had  been  made  by  the  directors.  Williams  v.  New 
England  Mut.  Fire  Ins.  Co.  29  Me.  465.     1849. 

§  3.  Policy  provided  that  upon  happening  of  a  loss 
the  directors  should  proceed  to  ascertain  and  determine 
the  same,  and  if  assured  were  not  satisfied  with  such  de- 
termination, he  should  bring  an  action  against  the  com- 
pany at  the  next  term  of  court  to  be  held  "  in  and  for 
Portage  county^"  and  the  director  failed  to  make  any 
determination  and  ascertainment  of  the  loss,  and  assured 
brought  his  action  in  another  county  than  that  mentioned 
in  the  policy.  The  act  of  1845,  in  Ohio,  provided  that 
suits  on  policies  of  insurance  might  be  brought  in  the 
county  where  the  contract  was  made,  tfec,  but  also  con- 
tained the  provision  "  that  the  provisions  of  this  act  shall 
not  be  construed  to  extend  to  contracts  of  insurance  or 
agreements  for  such  contracts,  made  or  entered  into  by  any 
insurance  company  of  this  State,  whose  charter  prescribes 
the  venue  where  alone  suits  against  such  company  may  be 
brought."  Held,  that  the  failure  of  the  directors  to  ascer- 
tain and  determine  the  loss  made  no  difference,  as  the  in- 
tention of  the  legislature  was,  that  when  any  member  of 
the  association,  who  had  suffered  a  loss,  felt  himself 
aggrieved  by  the  action  of  the  company,  he  should  bring 


698 


VENUE. 


his  suit  in  Portage  county.      Portage  County  Mut.   Ins. 
Co  V.  Stukey,  18  Ohio,  455.     1849. 

§  4.  Where  the  act  of  incorporation  of  the  company  pro- 
vided that  suit  should  be  brought  within  thirty  days  after 
the  directors  had  examined  and  ascertained  the  loss  in  a 
certain  county  ;  Ileld^  not  to  apply  where  the  directors  had 
failed  to  make  any  examination  or  determination  as  to 
amount  of  the  loss,  and  that  assured  might  bring  his  suit 
in  anj^  other  county  o?'  court.  Boynton  v.  Middlesex  Fire 
Ins.  Co.  4  Met.  Mass.  212.  1842.  Nevins  v.  Kocking- 
ham  Mut.  Ins.  Co.  5  Post.  N.  H.  22.     1852. 

§  5.  Where  act  incorporating  company  provided  that 
suit  should  be  brought  at  next  term  of  Jefterson  Circuit 
Court,  after  directors  had  ascertained  and  determined 
amount  of  the  loss  ;  Held^  that  the  condition  was  binding, 
I'l  absence  of  other  legislation  on  the  subject ;  but  where 
v'  >de  of  practice  adopted  afterwards  provided  means  of  re- 
dress against  insurance  companies  and  other  corporations ; 
Hel'f  ^hat  a  suit,  instituted  in  another  county  by  service 
on  ngert  of  company  therein,  and  in  conformity  with  pro- 
visions of  code  of  practice,  was  properly  withm  its  juris- 
diction. Howard  v.  Kentucky  <fe  Louisville  Mut.  Ins.  Co. 
13  B.  Monroe,  Ky.  282.     1852. 

§6.  Where  condition  provided  that,  after  notice  of 
loss,  the  directors  would  examine  and  ascertain  the  extent 
of  same,  and,  if  assured  were  dissatisfied,  he  should  bring 
suit  at  next  term  of  court  in  Marion  county;  and  the 
directors  were  notified  of  the  loss,  but  failed  to  ascertain 
and  determine  the  same ;  Htld^  that  assured's  remedy  was 
under  the  general  law,  and  service  on  an  agent  in  any 
other  coimty,  and  suit  therein,  was  legal  and  proper.. 
Indiana  Mut.  Fire  Ins.  Co.  v.  Routledge,  7  Ind.  25.     1855. 

§  7.  A  stipulation  in  one  of  the  conditions  of  a  stock 
policy,  that,  in  case  of  loss,  no  action  shall  be  brought 
upon  it,  except  in  the  county  of  Worcester,  is  no  legal  bar 
to  an  action  in  another  county,  where  by  law  the  action 
might  be  brought  if  no  such  condition  liad  been  made. 
Htul  V.  People'i^  Mut.  Fire  Ins.  Co.  G  Gray,  Mass.  185. 
185G. 


ty  Mut.   Ins. 

company  pro- 
rty  clays  after 
the  loss  in  a 
directors  had 
nation  as  to 
bring  his  suit 
iddlesex  Fire 
V.  liockina:- 


jrovided  that 
erson  Circuit 
determined 
was  binding, 
;  but  where 
means  of  re- 
corporations ; 
Y  by  service 
it^  with  pro- 
hm  its  juris- 
Mut.  Ins.  Co. 


ter  notice  of 
in  the  extent 
ihould  bring 
;y;  and  the 
to  ascertain 
remedy  was 
gent  in  any 
and  proper. 
I.  25.     1855. 

tis  of  a  stock 
be  brought 
no  legal  bar 
kV  the  action 
been  made. 
,  Mass.   185. 


VENUE. 


699 


§  8.  The  act  of  incorporation  and  by-laws  of  an  in- 
surance company  in  the  State  of  New  Hampshire  provided 
that  upon  notice  of  loss,  "  the  directors  shall  proceed  as 
soon  as  may  be  to  ascertain  and  determine  the  amount 
thereof,  and  shall  pay  the  same  within  three  months  after 
such  notice;  but  if  assured  shall  not  acquiesce  in  their 
determination,  his  claim  may  be  submitted  to  referees,  or 
he  may  within  three  months  after  such  determination,  but 
not  after  that  time,  bring  an  action  at  law  against  said 
company  for  such  loss ;  which  action  shall  be  brought  at 
a  proper  court  in  the  county  of  Merrimack,"  State  of  New 
Hampshire.  A.  having  insured  in  said  company,  notified 
them  of  a  loss,  but  the  directors  neglected  to  "  ascertain 
and  determine  the  amount  thereof  "  Jleldj  that  the  direct- 
ors having  neglected  or  refused  to  do  their  duty,  A.  might 
maintain  an  action  against  the  company  for  the  loss,  after 
the  time  limited  in  the  by-laws ;  that  after  a  contract 
has  been  broken,  the  remedy  is  regulated  by  law,  and  must 
be  governed  by  the  law  of  the  forum  where  redress  is 
sought,  and  that  A.  was  not  bound  by  the  provisions  that 
any  suit  should  be  brought  in  the  county  where  the  com- 
pany is  established.  Bartlett  v.  Union  Mut.  Fire  Ins.  Co. 
46  Me.  500.     1859. 

§  9.  A  provision  in  the  charter  of  an  insurance  com- 
pany which  limits  a  suit  on  the  policy  to  the  county 
where  the  company  is  located,  pertains  merely  to  the  rem- 
eay,  and  may  be  changed  by  a  general  law  upon  the  sub- 
ject. Sanders  v.  Hillsborough  Ins.  Co.  44  N.  H.  238. 
1862. 

§  10.  A  clause  in  an  act  incorporating  a  mutual  fire 
insurance  company,  j>roviding  that,  "in  case  of  loss  by 
fire,"  the  insured  shall  give  notice  thereof  in  writing  to 
the  directors  within  thirty  days ;  and  the  directors  shall 
ascertain  and  determine  the  amount  of  such  loss,  and  if 
the  party  suffering  is  not  satisfied  with  such  determina- 
tion, he  may  bring  an  action  against  said  company  for 
said  loss,  at  the  next  court,  to  be  holden  in  and  for  the 
county  "  where  said  company  is  established, "  and  not  after- 
wards," neither  repeals  in  express  terms  nor  by  necessary 
implication  the  general  law  of  the  State  authorizing  the 
plaintiff  to  maintain  his  action  in  the  county  where  he 


700 


WAIVER. 


resides.     Martin  v.  Penobscot  Mut.  Fire  Ins.  Co.  53  Me. 
419.     1866. 

§  11.  A  charter  provision  of  a  mutual  com];)any,  re- 
quired the  directors  to  pass  on  a  claim  for  loss  withm  80 
days.  If  the  claim  is  not  satisfied,  three  referees  are  to  be 
appointed,  and  on  their  failure  to  a^ree  the  claimant  is  to 
bnng  suit  in  a  specified  court.  Held,  naming  the  court  is 
not  as  a  cumulative  remedy, but  gives  that  court  exclusive 
jurisdiction.  The  company  however,  to  object  to  the  juris- 
diction of  any  other  court,  iriust  allege  and  prove 
the  preliminary  steps  of  action  by  the  directors  withm  the 
allotted  time,  and  of  the  referees,  which  make  the  law  ap- 
plicable. Arnet  v.  Milwaukee  Mechanics'  Mut.  Ins.  Co. 
L>2  Wis.  516.     1868. 


See  By-Laws  and  ConJitions,  j  9,  10.     Limitation  Clause,  10. 
Notes,  11,  18. 


Premium 


WAIVER. 

§  1.  The  lact  that  the  underwriter  tailed  to  specify 
the  non-production  of  the  preliminary  proofs,  required 
by  the  policy,  as  an  objection  to  the  ])aynient  of  the  loss, 
is  not  sufficient  evidence  to  justify  the  jury  in  inferring 
that  the  underwriter  had  thereby  waived  the  production 
of  such  proofs.  Columbian  Ins.  Co.  v.  Lawrence,  2  Pet. 
U.  S.  2.5.     1829. 

§  2.  A  defect  in  the  certificate  presented  to  the  com- 
pany is  not  waived  by  their  receiving  it  without  objection, 
nor  by  adopting  a  resolution  that  the  company  will  not 
pay  the  claim  made  l)y  the  })laintiff,  or  any  part  thereof, 
believing  that  it  is  founded  in  an  attempt  to  defraud  the 
company.  Roumage  v.  Mechanics'  Fire  Ins.  Co.  1  Green, 
N.  J.  110.     1832. 

§  3.  Where,  after  the  loss  of  insured  property,  re- 
peated communications  had  taken  ])lace  with  the  officers 
and  agents  of  the  company,  and  in  some  instances,  in  pur- 


WAIVER. 


701 


Ins.  Co.  53  Me. 


lause,  10.    Premium 


suance  of  directions  from  the  board  of  directors,  after  the 
preliminary  proofs  were  delivered,  and  no  objection  was 
made  to  the  sufficiency  of  such  proofs,  but  the  refusal  of 
the  company  to  pay,  based  upon  an  entirely  different 
ground ;  Held,  that  the  defects  in  such  proofs  must  be  con- 
sidered as  waived.  McMasters  v.  Westchester  County 
Mut.  Ins.  Co.  25  Wend.  N.  Y.  379.     1841. 

§  4.  Where  assured,  under  advice  and  direction  of  an 
agent  of  the  company,  made  out  the  preliminary  proofs,, 
in  compliance  with  the  requirements  of  the  policy,  as  he 
supposed,  and  subsequently,  at  the  request  of  the  insurers, 
produced  his  books  of  account,  which  were  examined  by 
the  insurers,  who  then  oifered  to  pay  a  certain  portion  of 
the  insurance  money,  which  assured  refused  to  accept, 
and  brought  suit  in  equity  on  the  policy.  Held,  that  tne 
company  having  failed  to  point  out  the  particular  defects 
in  tne  preliminary  proofs,  and  havin_^  expressed  no  dissat- 
isfaction therewith,  except  in  general  terms  as  to  the  loss 
generally,  could  not  upon  the  trial  make  such  an  objec- 
tion. Bodle  v^  Chenango  County  Mut.  Ins.  Co.  2  Comst. 
N.  Y.  53.     1848. 

§  5.  The  payment  by  the  insurers,  to  the  insured,  of 
a  part  of  the  sum  agreed  to  be  paid  by  the  policy,  is  a 
waiver  of  the  usual  preliminary  proofs.  Westlake  v.  St. 
Lawrence  County  Mut.  Ins.  Co.  14  Barb.  N.  Y.  206» 
1852. 

§  6.  If  a  deficiency  in  the  plaintiff's  proof  is  supplied 
during  the  trial  by  the  defendants  themselves,  it  is  a 
waiver  of  any  exception  they  may  have  taken,  based  on 
such  deficiency ;  and  if  the  insured  is  examined  as  a  wit- 
ness by  the  defendants,  this  is  a  waiver  of  an  exception 
taken  to  a  decision,  excluding  his  admissions.  Westlake 
v.  St.  Lawrence  County  Mut.  Ins.  Co.  14  Barb.  N.  Y.  206. 
1852. 

§  7.  Where  there  are  defects  in  the  preliminary 
proofs,  given  to  the  underwriter,  in  compliance  with  a 
condition  of  the  policy,  and  those  defects  are  supplied  by 
additional  proofs  furnished  by  the  assured  in  compliance 
with  the  request  ot  the  company,  and  received  and  re- 
turned by  them  without  objection,  and  afterwards  they 


702 


WAIVER. 


refuse  to  pay  the  loss,  because  they  concluded  that  they 
were  not  legally  liable.  Held,  that  the  company  had 
waived  their  rights  to  insist  upon  the  detects  or  omissions 
in  such  preliminary  proofs,  humstead  v.  Dividend  Mut. 
Ins.  Co.  2  Kern.  N.  Y.  81.     1854. 

§  8.  "Where  insurers  plead  non-payment  of  premium 
as  a  bar  to  recovery  on  a  policy,  and  in  the  supplemental 
answer,  allege  misrepresentation  and  concealment,  the  plea 
of  non-pavment  is  waived.  Michael  v.  Mutual  Ins.  Co. 
of  Nashville,  10  La.  An.  737.     1855. 

§  9.  An  insurance  company,  by  consenting  to  make  a 
policy  upon  an  apjilication  in  which  one  or  more  ques- 
tions are  unanswered,  waive  all  claim  for  further  answers. 
Hall  V.  People's  Mut.  Fire  Ins.  Co.  G  Gray,  Mass.  185. 
1856. 

p/  §  10.     Insurance  company  waives  the  right  to  object 

^         to  preliminary  proofs,  if  they  omit  to  point  out  defects  in 

time,  or  refuse   to  pay  upon  other  grounds.     Firemen's 

Ins.  Co.  V.  Crandall,  33  Ala.  9.    1858.    Francis  v.  Soraer- 

ville  Mut.  Ins.  Co.  1  Dutch.  N.  J.  78.     1856. 

£j  §  11.     If  insurer  places  his  refusal  to  pay  for  a  loss  on 

'       other  grounds  than  defects  in  the  preliminary  proofs,  he 

cannot  object  to  such  insufficiencies  on  the  trial.     Under- 

hill  V.  Agawam  Mut.  Ins.  Co.  6  Cush.  Mass.  440.     1850. 

Peoria  Marine  &  Fire  Ins.  Co.  v.  Lewis,  18  111.  553.     1857. 

§  12.  A  valid  legal  o])jection  to  the  payment  of  a  loss 
on  a  policy  of  insurance,  is  not  a  waiver  of  all  other  ob- 
jections, if  the  plaintiff  go  into  equity  to  avoid  the  effect 
of  that  objection  at  law.  Brown  v.  Savannah  Mut.  Ins. 
Co.  24  Ga.  97.     1858. 

§  13.  A  policy  issued  to  a  mortgagee  of  the  insured 
property,  required  certain  proofs  to  be  made  by  assured 
in  case  of  a  loss.  After  the  loss,  the  mortgagor  made  out 
the  proofs  required,  stating  that  the  buildings  were  in- 
sured by  the  defendants,  and  specified  their  numbers  and 
the  streets  on  which  they  were  situated,  and  also  gave  the 
number  of  the  policy  under  which  they  were  insured. 
Accompanying  these  proofs  made  by  the  mortgagor,  was 


WAIVER. 


703 


eluded  that  they 
he  company  had 
ects  or  omissions 
V.  Dividend  Mut. 

lent  of  premium 
he  supplemental 
ealment,  the  plea 
3Iutual  Ins.  Co. 


anting  to  make  a 
e  or  more  ques- 
furtlier  answers, 
rray,  Mass.  185. 

right  to  object 
t  out  defects  in 
nds.  Firemen's 
:'ancis  v.  Soraer- 
56. 

ay  for  a  loss  on 
nary  proofs,  he 
trial.  Under- 
isa.  440.  1850. 
111.  553.     1857. 

tyment  of  a  loss 
>f  all  other  ob- 
void  the  effect 
nnah  Mut.  Ins. 


of  the  insured 
de  by  assured 
:agor  made  out 
iings  were  in- 
r  numbers  and 
I  also  gave  the 

were  insured, 
lortgagor,  was 


an  affidavit  of  the  insured  mortgagee,  verifying  the  above 
facts.  The  company  made  no  objection  to  the  proofs  at 
the  time,  or  afterwards,  until  the  trial  of  the  action,  that 
they  were  not  made  by  the  "  insured,"  or  for  any  other 
cause.  Held,  that  they  had  thereby  waived  any  objec- 
tions as  to  them.  Kernochan  v.  New  York  Bowery  Fire 
Ins.  Co.  17  N.  Y.  428.     1858. 

§  14.  The  rule  that  insurers  will  be  held  to  have 
waived  objections  to  defects  in  the  preliminary  proofs  pre- 
sented by  a  claimant  if  they  do  not  distinctly  specify  their 
intention  to  rely  upon  such  objections,  and  especially  if  in- 
stead of  so  doing  they  assert  a  distinct  ground  of  defense, 
or  only  generally  deny  their  liability,  rests  upon  the  tend- 
ency of  suca  a  course  to  mislead  the  claimant;  and  in- 
surers who  apprise  a  claimant  that  his  papers  are  not 
proof,  and  refer  him  to  the  policy,  will  not  be  held  to  have 
waived  defects  in  such  proofs  because  they  did  not  go 
further  and  specify  them ;  nor  because  they  at  the  same 
time  took  other  objections  to  being  held  liable.  Kimball 
V.  Hamilton  Fire  Ins.  Co.  8  Bosw.  N.  Y.  495.     1861. 

§  15.  A  policy  provided  for  the  payment  of  losses 
within  sixty  days  after  the  same  should  be  ascertained  and 
proved.  A  loss  was  proved  and  demand  of  payment  made 
within  the  time  limited.  The  loss  was  admitted  by  the 
insurance  company,  which  offered  payment  of  what  it  as- 
sumed to  be  the  amount  of  its  liability,  but  payment  of 
the  full  amount  of  the  insurance  was  refused.  Held,  that 
the  condition  as  to  the  time  of  payment  was  waived,  and 
that  the  sura  for  which  the  insurers  were  bound  became 
due  and  recoverable  with  interest  from  the  date  of  the  de- 
mand.    Baltimore  Fire  Ins.  Co.  v.  Loney,  20  Md.  20.    1862. 

§  16.  The  requirements  of  a  policy  that  a  particular 
statement  of  loss  shall  be  furnished,  may  be  waived. 
Franklin  Fire  Ins.  Co.  v.  Updegraff  43  Penn.  St.  350. 
1862. 

§  17.  A  notice  by  an  insurer,  under  a  condition  of  the 
policy  authorizing  him  at  his  election  to  rebuild  or  repair 
in  case  or  loss,  that  he  elects  to  rebuild  or  repair,  is  a 
waiver  of  any  defense  based  upon  misrepresentations  by 


704 


WArV'ER. 


the  assured  at  the  time  of  the  application ;  if  the  fact  of 
such  misrepresentations  he  known  to  the  insurer  when  he 
gives  the  notice.  Bersche  v.  Globe  Mut.  Ins.  Co.  31  Mo. 
646.     1862. 

I  18.  A  clause  in  a  policy  of  insurance  providing  that 
the  interest  of  the  assured  in  the  policy,  or  in  the  property- 
insured,  is  not  assignable  without  the  consent  of  the 
insurers,  in  writing;  and  that  in  case  of  r  "  transfer  or 
termination  of  such  interest  without  sm  jnsent,  the 
policy  shall  thenceforth  be  void  and  of  no  effect,  is  to  be 
regarded  as  a  provision  made  for  the  exclusive  Lenefit  of 
the  company,  and  to  he  j)ractically  exercised  by  them  or 
not,  at  their  option.  If,  after  the  assured  has  transferred 
his  interest  in  the  policy  and  in  the  property  insured 
without  the  written  consent  of  the  company,  the  company 
choose  to  ratify  the  transfer,  and,  notwithstanding  the 
transfer,  to  continue  the  insurance,  the  policy  will  not  be 
absolutely  void.  h\  after  notice  of  such  transfer,  they 
treat  the  assiirnee  as  a  member  of  the  company,  they  will 
be  estopped  from  denyinir  such  ratification  and  approval. 
Hyatt  v.  Wait,  37  Barb.X  Y.  20.     1862. 

§  10.  The  insurer  may  waive  the  ben  of  a  condi- 
tion that  any  misrepresentation  or  concea...ient  on  the 
part  of  the  insured  shall  avoid  the  policy.  Bersche  v. 
Globe  Mut.  Ins.  Co.  31  Mo.  546.     1862. 

§  20.  "Where  the  policy  provided  that  the  insurance 
should  be  void  if  articles  denominated  "  hazardous  "  should 
be  stored  in  the  building  without  the  consent  of  the  com- 
pany endorsed  on  the  policy,  and  tlie  agent  of  the  company 
consented  to  the  removal  of  the  property  to  another  build- 
ing in  which  such  hazardous  articles  were  stored,  and 
agreed  to  make  whatever  entry  was  necessary  on  the  policy 
to  continue  it  in  force  notwithstanding  such  storage,  and 
took  and  letained  the  policy  for  the  purpose.  Held,  that 
the  agreement  of  the  agent  was  a  waiver  by  the  company 
of  the  condition  which  required  such  written  endorsement 
of  consent  until  such  endorsement  should  be  made,  llath- 
bone  V.  City  Fire  Ins.  Co.  31  Conn.  104.     1862. 

§  21.    If  by  the  terms  of  a  contract  of  insurance  it  is 


if  the  fact  of 
nsurer  when  he 
Im.  Co.  31  Mo. 

i  providing  that 
in  tlie  property- 
consent  of  the 
^  •"  transfer  or 
jnsent,  the 
3  effect,  is  to  be 
usive  benefit  of 
^ed  l)y  them  or 
has  transferred 
operty  insured 
y,  tlie  company 
ithstanding  the 
licy  will  not  be 
transfer,  they 
pany,  they  will 
I  and  approval. 

of  a  condi- 
iu...ient  on  the 
2y.    Bersche  v. 

b  the  insurance 
ardous  "  should 
;ent  of  the  com- 
of  the  company 
)  another  build- 
(re  stored,  and 
•y  on  the  policy 
ch  storage,  and 
se.  Ilefdj  that 
y  the  company 
;n  endorsement 
»e  made,  llath- 
L862. 

insurance  it  is 


WAIVEH 


ro5 


expressly  provided  that  the  application  on  whiili  the 
policy  is  issued  shall  bo  held  to  be  a  warranty  on  the  part 
of  the  assured,  knowledge  ]>y  the  agent  or  officers  »»f  tlio 
company  that  certain  answers  in  the  application  were  not 
coiTect  IS  no  evidence  of  a  waiver  by  the  company,  and  the 
policy  is  void.  Tebbetts  v.  Hamilton  Mut.  Ins.  Co.  3 
Allen,  Mass.  509.     1802. 

§  22.  The  assessment  and  collection  of  a  premium 
note  by  a  mutual  insurance  company,  after  it  has  been  ad- 
vised of  violations  of  the  conditions  of  the  policy,  operates 
as  a  waiver  of  any  forfeiture  occasioned  by  such  violations. 
Keenan  v.  P'lbuque  Mut.  Fire  Ins.  Co.  13  Iowa,  375. 
1802. 

§  23.  Where  the  general  agent  of  an  insurance  com- 
pany, acting  in  the  matter  of  his  agency,  and  in  relation 
to  tne  particular  loss  and  controversy  in  question,  stated 
to  an  agent  of  the  plaintiff  who  had  prepared  and  for- 
warded the  preliminary  proofs,  that  it  was  only  the  quan- 
tity and  value  of  the  property  that  the  company  disputed  ; 
Held,  a  waiver  by  the  (ompany  of  all  objection  to  the  pre- 
liminary proofs  on  account  of  defects  in  them.  Rathbone 
v.  City  Fu-e  Ins.  Co.  31  Conn.  194.     1802. 

§  24.  A  waiver  ot  formal  preliminary  proof  of  loss 
may  be  proved  ])y  evidence  that  one  of  the  officers  of  the 
company  made  personal  examination  of  the  premises  after 
the  fire  in  company  with  a  person  interested  in  the  prop- 
erty; that  afterwards,  and  within  the  time  limited  for 
making  formal  proof  of  loss,  the  secretaiy  told  the  person 
to  whom  the  amount  insured  was  payable  that  no  further 
proof  of  loss  was  necessary ;  that  the  directors,  upon  the 
informal  proof,  and  within  the  time  limited  for  making 
formal  proof,  passed  a  vote  appointing  a  committee  to  ad- 
just the  loss ;  and  that  afterwards,  in  refusing  to  pay  the 
loss,  the  refusal  was  put  solely  on  other  grounds.  Priest 
V.  Citizens'  Mut.  Fire  Ins.  Co.  3  Allen,  Mass.  002.     1802. 

§  25.    The  general  agent  of  a  company  sent  a  policy 
by  mail  to   an  applicant  for  insurance  with  a  statement 
that  the  premium  charged  was  higher  than  usual,  and  say- 
ing, "  Should  you  decline  the  policy,  please  return  ;  if  you 
45 


706 


WAIVER. 


retain  it  please  send  me  the  premium."  Held^  a  waiver 
of  a  condition  in  the  policy  requiring  prepayment  of  the 
premium.  Sheldon  v.  Atlantic  Fire  tfe  Marine  Ins.  Co.  2G 
k  Y.  117.     1863. 

§  26.  An  offer  of  compromise  of  a  claim  on  a  policy 
for  a  loss,  made  by  the  insurer,  after  the  preliminary 
proofs  of  loss  had  been  received  and  examined  without 
making  any  objections  to  the  proofs,  is  a  waiver  of  any 
defects  in  such  proofs.  Van  Deusen  v.  Charter  Oak  Fire 
&  Marine  Ins.  Co.  1  Robert.  N.  Y.  55;     1863. 

§  27.  Where  insurers  received  and  examined  the 
proofs  of  loss  presented  by  the  insured,  and  in  answer  to 
subsequent  inquiries  on  his  part,  whether  there  were  any 
further  proofs  that  he  could  show,  or  anything  further 
was  wanted  of  him,  answered  that  there  was  not,  and  after- 
ward offered  to  compromise  the  claim,  but  without  making 
any  objection  to  the  proofs ;  Held^  that  the  insurer  must 
be  deemed  to  have  waived  the  objection,  that  a  magistral  j  i 
certificate,  which  the  policy  required  should  accompany 
the  proofs  of  loss,  was  never  serv^ed  on  them.  Van  Deusen 
V.  Charter  Oak  Fire  ct;  Marine  Ins.  Co.  1  Abb.  Pr.  N.  S. 
K  Y.  349.     1863. 

§  28.  The  provisions  of  the  statute  of  Maine  requir- 
ing certain  notice  and  proof  of  loss  to  be  furnished  the 
company  may  l)e  waived  by  the  company  or  its  officers. 
Lewis  V.  Monmouth  Mut.  Fire  Ins.  Co.  52  Me.  492.     1864. 

§  29.  While  mere  silence  will  not  amount  to  a  waiver 
of  defects  in  proofs  of  less,  an  objection  to  the  proofs  upon 
one  specific  ground  and  silence  as  to  another  in  which  was 
the  real  defect,  operates  as  a  waiver  of  such  defect.  Ayres 
V.  Hartford  Fire  Ins.  Co.  17  Iowa,  176.     1864. 

§  30.  The  act  of  receiving  an  additional  premium  for  a 
variation  of  the  risk  after  the  existence  of  facts  which 
would  authorize  a  forfeiture,  had  become  known  to  the  in- 
surers, must,  in  the  absence  of  fraud  and  concealment,  be 
regarded  as  a  waiver  of  the  forfeiture.  North  Berwick 
Co.  V.  New  England  Fire  »fe  Marine  Ins.  Co.  52  Me.  336. 
1864. 

§  31.      Notice  of  a  fact  material  to  the  risk  to  the 


p^ 


leld^  a  waiver 
aymeut  of  the 
ine  Ins.  Co.  2G 

ni  on  a  policy 
e  preliminary 
nined  without 
waiver  of  any 
irter  Oak  Fire 
3. 

examined  the 
in  answer  to 
;here  were  any 
jrthing  further 
1  not,  and  after- 
ithout  making 
e  insurer  must 
fcr.  magistra'j  2 
lid  accompany 
.  Van  Deusen 
bl).  Pr.  N.  S. 


I 


■  Maine  requii- 

furnished  the 

or  its  officers. 

[e.  492.     1864. 

iint  to  a  waiver 
he  proofs  upon 
r  in  which  was 
defect.  Avres 
G4.  ^ 

1  premium  for  a 
of  facts  which 
lown  to  the  in^ 
jncealment,  he 
I^orth  Berwick 
X  52  Me.  336. 

le  risk  to  the 


WAIVER. 


707 


agent  of  a  company  is  notice  to  the  principal,  and  by 
taking  the  premium  and  issuing  the  policy  the  company 
must  be  regarded  as  waiving  otjjection  on  account  thereof. 
Peoria  Marine  &  Fire  Ins.  Co.  v.  Hall,  12  Mich.  202.     1864. 

/  §  32.  If  an  insurer  receives  and  retains  preliminary 
proofs  of  loss  without  objection,  he  will  be  deemed  to  have 
waived  any  defects  or  insufficiencies  therein.  Brown  v. 
Kings  County  Fire  Ins.  Co.  31  How.  N.  Y.  508.     1865. 

§  33.  The  coiTdition  requiring  preliminary  proofs 
cannot  be  waived  by  parol  in  a  policy  under  seal.  Quoere, 
whether  a  waiver  can  be  shown,  when  the  reply  has  not 
specially  pleaded  it.  Scott  v.  Niagara  District  Mut.  Ins. 
Co.  25U.  C,  Q.  B.  119.     1865. 

§  34.  A  waiver  of  all  preliminary  proofs  must  be 
specially  pleaded.  Semhle^  that  the  secretary's  letter  de- 
clining to  pay  for  other  reasons,  is  not  evidence  of  a 
waiver  of  defective  proofs.  Mulvey  v.  Gore  District  Mut. 
Fire  Ass.  Co.  25  U.  C,  Q.  B.  424.     1866. 

§  35.  Assvu'ed  assigned  the  premises  and  policy  to 
the  plaintiff,  but  before  the  sale,  a  tenant  changed  the 
premises  from  a  store  to  a  tavern,  unknown  to  the  plaint- 
iff, but  with  the  defendant's  knowledge.  The  defendant's 
agent  dissuaded  plaintiff  from  visiting  the  premises,  assur- 
ing him  that  ^11  conditions  of  the  policy  were  complied 
with.  Ileld^  the  condition  of  forfeiture,  unless  change  of 
occupancy  is  notified  to  the  company  in  writing  within  ten 
days,  and  consent  obtained,  is  waived ;  and  the  ratifica- 
tion of  the  assiijnment  is  bindina:  notwithstandinsf  the 
existing  breach.  Kreutz  v.  Niagara  District  Mut.  Fire 
Ins.  Co.  16  U.  C,  C.  P.  131.     1866. 

§  36.  Semite^  a  parol  waiver  of  the  conditions  of  a 
sealed  policy  cannot  be  shown.  Lindsay  v.  Niagara 
District  Mut.  Fire  Ins.  Co.  28  U.  C,  Q.  B.  326.     1869. 

§  37.  A  condition  requiiing  written  consent  to  any 
change  of  occupation  or  other  change  increasing  the  risk, 
may  be  waived  in  pais  or  by  parol;  at  least,  where  the 
policy  not  being  under  seal  is  not  a  specialty,  nor  is  a  new 
consideration  required  therefor.     Any  circumstances,  acta 


' 


I  I  i 


708 


WAIVER. 


or  declarations  (made  witli  knowledge  of  the  facts),  treat- 
ing the  contract  as  still  subsisting,  and  inducing  the  as- 
sured to  believe  the  condition  waived  (and  himself  still 
protected),  is  a  waiver.  Viele  v.  Germania  Ins.  Co.  26 
Iowa,  9.     1868. 

§  38.  The  asgured  notified  the  company  after  the  fire, 
that  further  insurance  had  been  obtained.  The  com- 
pany after  such  notice  appointed  an  appraiser  to  value  the 
property,  and  failed  to  refund  tL  ^  unearned  premium ; 
Held,  no  evidence  of  waiver,  for  the  plaintiff  was  not 
l>rejudiced,  and  the  company  had  a  right  to  appraise  be- 
fore electing  what  to  do.  Jewett  v.  Home  Ins.  Co.  29 
Iowa,  562.     1870. 

8  39.  Collecting  assessments  after  notice  or  knowl- 
edge  of  the  over-insurance,  would  be  an  estoppel  against 
setting  up  a  forfeiture  of  the  contract.  But  where  the 
agent  forgetting  his  instructions  not  to  collect  the  assess- 
ment, made  a  demand  therefor,  but  then  remembering 
them,  did  not  collect,  this  cannot  be  submitted  to  a  jury 
as  evidence  of  waiver;  a  mere  spark  of  evidence  is  not 
enough  ;  there  must  be  enough  to  raise  a  reasonable  ques- 
tion. Elliott  V.  Lycoming  Co.  Mut.  Ins.  Co.  66  Pa.  St.  22. 
1870. 

§  40.  The  policy  was  on  a  house  and  stable,  and  the 
over-insurance  was  on  the  house;  tender  and  payment 
into  court  of  a  sum  as  loss  on  the  stable,  is  no  anirmance 
of  the  entire  contract.  Elliott  v.  Lycoming  Co.  Mut.  Ins. 
Co.  66  Pa.  St.  22.     1870. 

§  41.  Policy  issued  on  a  house — to  be  void,  if  the 
property  was  transferred  or  possession  changed.  The 
property  was  sold,  and  some  time  afterwards,  the  policy 
was  transferred  to  the  vendee  with  the  company's  consent. 
Held,  that  a  forfeiture  may  be  waived,  and  a  voided  policy 
revived,  as  eflfectually  as  by  giving  a  new  policy ;  the  re- 
tention of  the  premium  being  the  consideration.  Shear- 
man V.  Niagara  Fire  Ins.  Co.  (1  Sickles)  46  N.  Y.  526. 
1871. 

§  42.  Per  Ripley,  C.  J.  Whether  a  condition  that 
nothing  shall  be  deemed  a  waiver  of  the  requirement  of 


WARRANTY   AND   REPRESENTATION. 


709 


proofs  within  thirty  days,  and  suit  within  a  year  after 
loss,  except  it  be  in  writing  signed  by  the  president  and 
secretary,  can  be  itself  waived  or  not ;  there  must  be  evi- 
dence that  the  person  who  was  alleged  to  have  verbally 
waived  it,  had  authority  to  do  so,  the  presumption  being 
against  it.  And  the  silence  of  the  defendant  when  the 
proofs  were  not  sent  in  time,  is  not  a  waiver,  because  the 
assured  could  not  be  misled  thereby.  Guernsey  v.  Am. 
Ins.  Co.  17  Minn.  104.     1871. 

See  Agent,  §  3,  90.  Alienation,  66,  78.  Application,  87,48,  62,  65.  Ar- 
bitration and  Appraisement,  10.  Assignment,  38,  49.  Burden  of  Proof,  11. 
By-Laws  and  Conditions,  18.  Certificate,  8,  9, 11,  13,  17.  Consummation  of 
Contract,  17.  Dependency  of  Policy  and  Premium  Note,  10,  18,  16,  18.  En- 
dorsements, 3,  6.  Foreign  Ins.  Co.'s.  39.  Limitation  clause,  2.  3,  4,  8,  12,  15, 
21,  34.  Notice  of  loss,  6,  7,  9, 14,  17,  18,  80,  22,  27,  32, 33,  34,  87  Other  In- 
surance, 82, 62,  78,  88,  113,  119,  120, 134,  135,  137,  142.  Parol  Evidence,  27. 
Pavment  of  loss,  II.  Payment  of  Premium,  4,  6,  8,  9, 12,  17,  29.  Pleading 
and  Practice,  21,  79,  105.  Preliminary  Proofs,  8,  18, 13,  15,  17,  18,  22,  24, 
26,  87,  89,  30,  31,  38,  33,  34,  36,  38,  41,  43,  47,  55,  78,  75,  77,  79,  83.  Ques- 
tions for  Court  and  Juiy,  16.  Rebuild,  Replace  or  Repair,  5.  Revival  and 
Suspension  of  Policy,  2,  3,  5,  6,  7.    Title  41.     Use  and  Occupation,  56. 


^  N.  Y.  526. 


WARRANTY  AND  REPRESENTATION. 

§  1.  A  policy  of  insurance  on  a  manufacturing  estab- 
lishment provided  that,  "  if  the  situation  or  circumstances 
affecting  the  risk  upon  the  property  insured  shall  be  al- 
tered or  changed,  by  or  with  the  advice,  agency  or  consent 
of  the  assured  or  their  agent,  so  as  to  increase  tl  e  risk 
thereupon,  without  the  consent  of  the  company,  thr  lolicy 
shall  be  void."  Held^  that  this  clause,  taken  in  connection 
with  certain  representations  in  the  application  of  assured, 
as  to  certain  usages  and  practices  observed  at  the  factory, 
as  to  mode  of  conducting  their  business,  and  as  to  pre- 
cautions taken  to  guard  against  fire,  was,  in  legal  effect,  a 
stipulation,  not  only  that  the  facts  were  true  at  the  time, 
but  that  as  far  as  the  assured,  and  all  those  entrusted  by 
them  with  the  care  and  management  of  the  property,  were 
concerned,  such  modes  of  conducting  the  business  should 
be  substantially  observed,  and  such  precautions  substanti- 


710 


WAERANTY  AND   REPEESENTATION. 


ally  be  continued  to  be  taken,  during  the  continuance  of 
the  policy ;  and  that  if  any  alteration  or  change  should  be 
made,  or  any  custom  or  practice,  different  from  that  repre- 
sented, should  be  introduced,  whereby  the  risk  should  be 
increased,  the  policy  should  be  void.  Houghton  v.  Manu- 
facturers' Mut.  Fire  Ins.  Co.  8  Met.  Mass.  114.     1844. 

§  2.  Representations  of  the  insured  are  not  to  be 
taken  as  warranties,  so  that  the  slightest  variation  would 
release  insurers,  but  as  statements  of  facts,  which  do  not 
release  insurers,  unless  materially  different  from  truth,  and 
that  in  a  way  which  increases  the  risk;  its  materiality 
being  deteimmed  by  the  amount  of  premium  required. 
But  the  representations,  if  material,  will  avoid  the  policy, 
whatever  may  be  the  cause  of  the  loss.  Nicol  v.  American 
Ins.  Co.  3  Woodb.  &  Minot,  C.  C.  U.  S.  529.     1847. 

§  3.  The  assured  represented  that  there  were  no 
lamps  in  the  picking  room.  The  proof  was  that  lamps 
were  used  in  the  picking  room,  which  materially  increased 
the  risk,  and  from  which  the  fire  arose.  IleM,  that  the 
policy  was  void.  Clark  v.  Manufacturers'  Ins.  Co.  2 
Woodb.  &  Min.  C.  C.  U.  S.  472.  1847.  Affirmed,  8 
How.  U.  S.  235.     1850. 

§  4.  Warranties  cannot  be  deviated  from  in  the 
smallest  particular,  whether  material  or  immaterial ;  but 
the  insured  is  not  answerable  on  account  of  representa- 
tions, imless  they  differ,  in  material  respects,  from  the 
truth,  or  are  departed  from  in  a  material  manner.  When 
the  representations  are  dehors  the  policy,  and  are  not  re- 
ferred to  in  it  as  warranties,  they  are  not  to  be  treated  as 
w^arranties.  Nicol  v.  American  Ins.  Co.  3  Woodb.  &  Min. 
C.  C.  U.  S.  529.     1847. 

§  5.  The  application  for  insurance  was  referred  to  in 
the  policy  as  forming  a  part  thereof  In  such  application 
in  answer  to  a  question  as  to  the  stoves,  assured  answered  : 
"  Pipe  passes  through  the  window  at  side  of  the  building. 
There  will,  however,  be  a  stove  chimney  built,  and  the 
pipe  will  pass  into  it  at  the  side."  Three  years  afterwards 
the  building  was  destroyed  }>y  fire,  the  chinmey  not  yet 
having  been  built.    Jletd,  that  the  policy  was  void.    It 


ON. 

continuance  of 
ange  should  he 
i'om  that  repre- 
risk  should  be 
ghton  v.Manu- 
14.     1844. 

are  not  to  be 
ariation  would 
,  which  do  not 
from  truth,  and 
its  materiality 
nium  required, 
roid  the  policy, 
col  V.  American 
[).     1847. 

here  were  no 
ras  that  lamps 
rially  increased 
Held,  that  the 
rs'  Ins.  Co.  2 
.     Affirmed,  8 


[  from  in  the 
nmaterial;  but 
of  representa- 
•ects,  from  the 
anner.  When 
and  are  not  re- 
0  be  treated  as 
roodb.  &  Min. 

referred  to  in 
ich  application 
red  answered : 
r  the  building, 
built,  and  the 
?ars  afterwards 
inmey  not  yet 
was  void.    It 


WAERANTT    AND    REPRESENTATION. 


ni 


further  appearing  that  the  secretary  had  endorsed  upon 
the  policy  the  following:  "Consent  is  given  that  the 
within  policy  remain  good  notwithstanding  the  stove  in 
said  mill  has  been  removed,"  «fcc. ;  Held,  that  such  en- 
dorsement did  not  exonerate  the  assured  from  building 
the  chimney  according  to  his  promise.  Murdock  v.  Che- 
nango County  Mut.  Ins.  Co.  2  Comst.  N.  Y.  210.     1849. 

§  6.  The  assured  in  giving  notice  to  the  company  of 
the  introduction,  into  the  mill  insured,  of  a  kiln  drying 
machine,  stated,  "  it  is  for  burning  hard  coal."  Held,  that 
this  was  a  mere  statement  that  the  machine  was  designed 
"  for  burning  hard  coal,"  without  binding  the  assured  not 
to  use  other  fuel,  if  it  should  become  necessary ;  provided 
the  risk  was  not  thereby  increased.  Tillou  v.  Kingston 
Mut.  Ins.  Co.  7  Barb.  N.  Y.  570.    1850. 

§  7.  In  a  verbel  application  for  leave  to  obtain  an  ad- 
ditional insurance,  the  statements  made  to  first  company 
insuring  are  not  warranties ;  they  are  only  representations 
which  may  be  untrue,  and  yet,  if  not  fraudulently  made, 
if  they  are  immaterial,  and  produce  to  the  defendant  no 
injury,  will  not  avoid  the  policy  issued  by  the  defendants. 
Williams  v.  New  England  Mut.  Fire  Ins.  Co.  31  Me.  219. 
1850. 

§  8.  In  the  application  in  this  case  was  this  question : 
"  In  what  are  ashes  kept  at  all  times  % " .  Answer :  "  Brick." 
Held,  that  if  after  the  issuing  of  the  policy  upon  the  ap- 
plication, the  ashes  of  assured  were  kept  as  safely  in  the 
building  insured,  as  if  they  had  been  kept  in  the  mode 
represented  in  the  application,  the  assured,  so  far  as  this 
point  was  concerned,  would  be  entitled  to  recover.  Un- 
derhill  v.  Agawam  M'.;t.  Ins.  Co.  6  Cush.  Mass.  440. 
1850. 

§  9.  A  representation,  inserted  in  a  policy,  becomes  a 
warranty.  Kepresentations  are  part  of  the  proceedings 
preliminary  to  the  contract.  Williams  v.  New  England 
Mut.  Ins.  Co.  31  Me.  219.     1850. 

§  10.  The  rule  that  warranty  does  not  extend  to  de- 
fects, which  are  known  to  the  purchaser  in  sales  of  prop- 
erty, does  not  apply  to  warranties  in  contracts  of  insurance. 
Kennedy  v.  Insurance  Co.  10  Barb.  N.  Y.  285.     1851. 


712 


WAERANTY    AND    REPRESENTATION. 


I 


§  11.  A  representation  precedes,  and  is  no  part  of 
the  contract  of  insurance,  and  need  be  only  materially- 
true  ;  but  a  warranty  is  part  of  the  contract,  and  must  be 
exactly  and  literally  fulfilled,  or  else  the  contract  is  broken 
and  policy  becomes  void.  Glendale  Woolen  Co.  v.  Pro- 
tection Ins.  Co.  21  Conn.  19.     1851. 

§  12.  Any  misrepresentation  in  regard  to  encum- 
brances or  title,  in  a  mutual  insurance  company,  in  reply 
to  inquiries,  avoids  the  policy,  although  not  made  with  a 
knowledge  of  their  falsity  on  the  part  of  assured,  or  with 
any  intent  to  deceive.  Wilbur  v.  Bowditch  Mut.  Ins.  Co. 
10  Cush.  Mass.  446.     1852. 

§  13.  No  mere  representation  made  by  the  assured 
is  a  warranty.  A  representation  which  is  false  will  avoid 
the  policy,  if  the  actual  risk  were  greater  than  it  would  be 
if  the  representation  were  true ;  otherwise  not.  Wall  v. 
Howard  Ins.  Co.  14  Barb.  N.  Y.  383.     1852. 

§  14.  Agent  of  plaintiffs  handed  a  brief  memorandum 
to  insurers,  reading :  "  Wall,  Tlichardson  <fc  Engle  wish  in- 
surance on  their  own,  «fec.,  their  stock  as  rope  manufactur- 
ers, contained  in  the  brick  building  with  tin  roof,  iron 
shutters,  first  stoiy  occupied  as  a  store-house  on  the  north- 
erly side,  and  about  42  feet  distant  from  rope  walk ; "  upon 
which  insurers  made  out  a  policy  and  referred  to  above 
application,  but  did  not  in  express  words  make  it  part  of 
the  policy.  Held.,  that  it  was  not  part  of  the  contract,  but 
a  representation ;  and  only  material  as  a  defense  to  the 
insurers,  in  showing  that  they  were  misled  in  a  material 
matter,  and  made  an  insurance  at  a  rate  which  they  would 
not  have  done  if  they  had  not  been  misled.  Wall  v. 
Howard  Ins.  Co.  14  Barb.  K  Y.  383.     1852. 

§  15.  Under  clause,  "  that  whenever  the  circumstances 
disclosed  in  any  application  shall  l^ecome  so  changed  as  to 
increase  th«  risk,  the  policy  Siiall  become  void,  unless," 
<fec. ;  Hehl.,  that  a  statement  in  the  application  which  was 
expressly  made  pait  of  the  policy,  that  the  counting-room 
was  w^anned  with  coal  by  one  stove,  and  that  the  funnel 
and  stove  w^ere  well  secured,  must  T)e  understood  to  mean 
that  when  it  was  waimed  at  all,  it  was  thus  warmed ;  and 


!f. 


is  no  part  of 
]y  materially 
and  must  be 
;ract  is  broken 
n  Co.  V.  Pro- 


to  encum- 

any,  in  reply 

made  witu  a 

ured,  or  with 

iMut.  Ins.  Co. 

r  the  assured 
Ise  will  avoid 
n  it  would  be 
not.     Wall  V. 

memorandum 
Engle  wish  in- 
e  manufactur- 
tin  roof,  iron 
on  the  north- 
(Walk ; "  upon 
red  to  above 
ike  it  part  of 
contract,  but 
Bfense  to  the 
in  a  material 
h  they  would 
id.     Wall  V. 

•ircumstances 
changed  as  to 
ro'idj  unless," 
n  which  was 
3unting-rooni 
at  the  funnel 
ood  to  mean 
vanned ;  and 


•*?: 


WABBANTY   AND   BEPBESENTATION. 


713 


not  the  stove  and  fannel  were  well  secured  during  the 
summer  season,  when  there  was  no  occasion  to  warm  the 
room.  Although,  therefore,  they  were  not  thus  secured 
when  the  loss  happened,  yet  it  was  not  such  a  change  of 
circumstances  within  the  meaning  of  the  condition  as  to 
avoid  the  policy.  Loud  v.  Citizens'  Mut.  Ins.  Co.  2  Gray, 
Mass.  221.     1854. 

§  16.  The  conditions  of  insurance  annexed  to  a  policy 
and  made  part  of  it,  required  applications  for  insurance  to 
be  in  writing,  and  to  specify  divers  particulars,  all  relat- 
ing to  a  description  of  the  premises  and  the  uses  to  which 
they  were  applied ;  and  j)roviding  that  a  false  description  by 
the  assured  should  avoid  the  policy ;  and  that  when  the 
policy  issued  upon  a  survey  and  description,  it  should  be 
deemed  a  part  of  the  policy  and  warranty  on  the  part  of 
the  assured.  Held,  that  other  facts  stated  in  the  applica- 
tion, not  required  to  be  stated  therein  by  the  conditions  of 
the  policy,  or  descriptive  of  the  premises,  were  not  made 
part  of  the  contract,  and  were  to  be  treated  as  representa- 
tions, and  not  warranties ;  although  the  survey  was  referred 
to  in  the  policy  in  these  words :  "  For  a  more  particular 
description  of  said  premises,,  see  survey  No.  74,  furnished 
by  the  insured,  which  is  hereby  made  pai*t  of  this  policy .'*^ 
But  though  such  statements  are  to  be  treated  as  represen- 
tations, yet  they  are  representations  made  material  by  the 
parties,  and  therefore  that  materiality  was  not  a  question 
for  the  jury.  When,  therefore,  in  reply  to  a  question  of 
"  ashes,  now  disposed  of? "  the  reply  was,  "  thrown  out ; " 
and  evidence  went  to  show  that,  before  the  taking  out  of 
the  policy,  some  of  the  ashes  had  been  placed  in  a  wooden 
box  in  kitchen  by  family  of  defendant's  clerk,  for  the 
purpose  of  softening  water  to  wash  with,  and  what  were 
not  wanted  for  this  purpose  were  thrown  out,  and  that  the 
uniform  practice  had  been  to  wet  down  those  put  in  box, 
but  it  had  been  forgotten  one  night,  and  the  box  had  been 
set  fire  from  them,  but  not  the  house ;  the  judge  instracted 
the  jury  that  if  the  representations  as  to  ashes  were  sub- 
stantially untrue;  if  the  habit  was  to  deposit  the  ashes  in 
the  building  insured,  the  policy  was  void,  whether  the 
representation  was  made  intentionally  or  by  mistake ; 
and  whether  the  applicant  knew  what  was  done  with  the 


714 


WARRANTY    AND    REPRESENTATION. 


ashes  or  not ;  but  if  the  ashes  were  generally  and  usually 
thrown  out,  and  only  deposited  in  the  building  occasion- 
ally, and  for  special  or  extraordinary  purposes,  or  accident- 
ally, it  would  not  avoid  the  policy.  Protection  Ins.  Co. 
V.  Harmer,  2  Ohio  St.  (22  Ohio)  452.     1853. 

§  17.  A  misrepresentation  of  a  fact,  which  was  in  no 
way  material  to  the  lisk,  and  could  have  had  no  effect  to 
increase  the  premium,  if  known,  will  not  make  the  policy 
void ;  no  matter  whether  it  be  contained  in  the  policy,  or 
be  outside  of  it.  Roth  v.  City  Ins.  Co.  6  McLean,  C.  C. 
U.  S.  324.     1855. 

§  18.  A  policy  of  insurance  upon  a  building,  in  course 
•of  construction,  contained  this  statement  in  the  applica- 
tion :  "  Water  tanks  to  be  well  supjilied  with  water  at  all 
times ; "  Held^  that  this  statement  must  be  taken  to  be 
mad^  with  reference  to  the  existing  state  of  the  luilding 
and  required  a  performance  of  the  conditions  or  stipula- 
tions adapted  to  that  state  of  things ;  the  water  tanks 
were  to  be  supplied  with  all  reasonable  diligence,  having 
reference  to  the  progress  in  the  construction  of  the  build- 
ing insured ;  and  they  were  not  required  to  have  them  at 
all  times  well  supplied  from  the  first  moment  the  policy 
issued,  as  they  would  have  been  had  the  policy  been  on  a 
finished  building.  Gloucester  Manufacturing  Co.  v.  How- 
ard Fire  Ins.  Co.  5  Gray,  Mass.  497.     1855. 

§  19.  "Warranty  is  a  stipulation,  on  the  literal  truth 
and  fulfillment  of  which,  the  entire  contract  depends. 
The  insurer  has  a  right  to  exact  a  literal  compliance,  and 
cannot  be  compelled  to  accept  a  substantial  compliance. 
Sayles  v.  North  Western  Ins.  Co.  2  Curtis,  C.  C.  U.  S. 
612.     1856. 

§  20.  Where  a  by-law  declared  that,  unless  the  appli- 
cant for  insurance  should  make  a  true  representation  of 
the  property  on  which  he  requests  insurance,  "so  far  as 
concerns  the  risk  and  value  thereof,  the  policy,  issued 
thereon,  shall  be  void; "  IMd^  that  only  those  representa- 
tions which  concern  the  risk  and  value  of  the  property, 
affect  the  contract,  and  that  this  being  so,  the  questions 
arising  upon  all  omissions  to  make  true  representations  of 


noN. 

ally  and  usually 
uilding  occasion- 
OSes,  or  accident- 
atection  Ins.  Co. 
853. 

tvhich  was  in  no 
had  no  effect  to 
make  the  policy 
in  the  policy,  or 
6  McLean,  C.  C. 

lildiug,  in  course 
in  the  applica- 
vith  water  at  all 
be  taken  to  be 
of  the  I  uilding 
tions  or  stipula- 
ihe  water  tanks 
liligence,  having 
ion  of  the  build- 
to  have  them  at 
•ment  the  policy 
policy  been  on  a 
•ing  Co.  V.  How- 
5. 

the  literal  truth 
n tract  depends, 
compliance,  and 
itial  compliance, 
tis,  C.  C.  U.  S. 


mless  the  appli- 
^presentation  of 
tnce,  "so  far  as 
3  policy,  issued 
liose  representa- 
>f  the  property, 
>,  the  questions 
presentations  of 


WARRANTY   AND   REPRESENTATION. 


715 


the  property  become  questions  of  fact,  whether  the  risk 
was  increased  or  the  value  over-stated.  Chase  v.  Hamil- 
ton Mut.  Ins.  Co.  22  Barb.  N.  Y.  527.     1856. 

§  21.  Warranty  of  force  pumps  ready  for  use,  in- 
cludes warranty  of  power  to  work  the  pumps;  but  no 
particular  kind  of  power,  nor  that  the  pumps  shall  not  be 
disabled  by  the  fire.  Sayles  v.  North  Western  Ins.  Co.  2 
Curtis,  C.  C.  U.  S.  612.  1856. 

§  22.  An  application  to  another  company,  containing 
certain  representations,  was  adopted  by  the  defendants 
as  forming  a  part  of  their  policy.  In  such  application,  in 
reply  to  tne  question,  "  During  what  hours  is  the  factory 
worked  ? "  plaintiff  answered, ''  We  run  the  pickers,  cards, 
drawing  frames,  and  speeder  day  and  night ;  the  rest  only 
twelve  hours  daily.  We  only  intend  running  nights  until 
we  get  more  cards,  &c.,  which  are  making  ;  shall  not  run 
nights  over  four  months."  Ifeldj  that  the  statement  of  an 
intention  to  cease  running,  when  they  received  the  cards 
then  being  made,  was  equivalent  to  an  agreement  to  cease 
upon  that  event ;  and  the  subsequent  clause,  "  We  shall 
not  run  nights  over  four  months,"  was  plainly  but  a  pre- 
cise definition  and  limitation  of  this  agreement.  When, 
therefore,  after  the  four  months  had  passed,  a  fire  occurred 
on  the  11th  of  the  month,  destroying  part  of  the  machin- 
ery, and  to  make  up  for  the  lost  time,  the  factory  was 
worked  at  night  until  a  second  fire  on  the  20th  of  same 
month ;  Jleld,  there  could  be  no  recovery  for  the  loss  oc- 
curring at  the  second  fire,  after  the  violation  of  the  agree- 
ment. The  doctrine  of  "  promissory  representation,"  and 
case  of  Murdock  v.  Chenango  Mut.  Ins.  Co.  2  Comst.  210, 
examined.  Bilbrough  v.  Metropolitan  Ins.  Co.  5  Duer, 
N.  Y.587.     1856. 

§  23.  An  inquiry,  made  by  insurer,  shows  that  he 
deems  the  matter  inquired  about  material ;  an  answer  by 
the  assured  admits  the  materiality.  It  is  an  agreement, 
that  the  matter  inquired  about  is  material;  and,  therefore, 
the  materiality  of  answers  to  questions  of  insurer,  cannot 
be  submitted  to  the  jury.  Wilson  v.  Conway  Ins.  Co.  4 
K.  I.  141.     1856. 

§  24.     Where  from  the  ambiguity  of  the  language  em- 


716 


WARRANTY    AND    REPRESENTATION. 


ployed  by  the  insurers  it  cannot  be  certainly  determined 
whether  certain  answers  and  plans  in  the  application  were 
intended  as  warranties  or  representations,  tne  court  will 
construe  in  favor  of  the  assured,  by  holding  so  much  of 
the  application  as  is  not  declared  to  be  warranty,  as  repre- 
sentation merely.  Wilson  v.  Conway  Ins.  Co.  4  R.  I.  141. 
1856. 

§  25;  A  false  representation  of  a  material  fact  is  suf- 
ficient to  avoid  a  policy  of  insurance  underwritten  on  the 
faith  thereof,  whether  the  false  representation  be  by  mis- 
take or  design.  And  a  misrepresentation  made  by  an 
agent  in  procuring  a  policy  is  equally  fatal,  whether  made 
with  the  knowledge  or  consent  of  the  principal  or  not. 
Carpenter  v.  American  Ins.  Co.  1  Story,  C.  C.  U.  S.  57. 
1839. 

§  26.  The  representation  that  there  is  a  force  pump 
in  starch  manufactoiy  does  not,  by  implication,  include 
hose.  Peoria  Marine  <fe  Fire  Ins.  Co.  v.  Lewis,  18  111.  553. 
1857. 

§  27.  Plaintiffs  applied  to  the  defendants  for  re-in- 
surance in  sum  of  $10,000,  on  sugar  and  molasses,  on  cer- 
tain plantation,  saying,  "  We  have  buildings."  The  in- 
surance was  effected,  and  afterwards  it  was  shown  that 
plaintiffs  had  no  insurance  on  the  buildings.  Held,  that 
the  representation,  being  false,  and  intended  to  influence 
the  minds  of  defendants  in  taking  the  risk,  was  material, 
and  therefore  fatal  to  the  contract.  Louisiana  Mut.  Ins. 
Co.  V.  New  Orleans  Ins.  Co.  13  La.  An.  246.     1858. 

§  28.  The  written  portion  of  the  policy  read  as  fol- 
lows :  "$2,400  on  the  hull  and  cabins;  $1,200  on  the 
engines  and  boilers,  and  $400  on  the  tackle  and  furni- 
ture of  the  steamboat  Malakoff,  now  lying  in  Tate's  dock, 
Montreal,  and  intended  to  navigate  the  St.  Lawrence  and 
lakes  from  Hamilton  to  Quebec,  principally  as  a  freight 
boat,  and  to  be  laid  up  for  the  winter  in  a  place  approved 
by  this  company.  That  boat  remained  in  the  dock  until 
destroyed  by  fire,  without  ever  having  navigated,  or  being 
even  in  a  condition  to  navigate.  IleTd,  that  the  words  in 
the  policy  as  to  the  intention  to  navigate  constituted  a 
warranty  that  the  boat  should  run  during  the  summer  and 


^TION. 

tainly  determined 
B  apDlication  were 
ns,  the  court  will 
kling  so  much  of 
vaiTanty,  as  repi-e- 
is.  Co.  4  R.  I.  141. 

laterial  fact  is  suf- 
(lerwritten  on  the 
ation  be  by  mis- 
ion  made  by  an 
;al,  whether  made 
principal  or  not. 
^  C.  d  U.  S.  57. 

e  is  a  force  pump 
plication,  include 
^evvis,  18  111.  553. 

mdants  for  re-in- 
molasses,  on  cer- 
lldings."  The  in- 
was  shown  that 
lings.  Held,  that 
[ided  to  influence 
isk,  was  material, 
misiana  Mut.  Ins. 
146.     1858. 

)olicy  read  as  fol- 
;  $1,200  on  the 
tackle  and  fiirni- 
g  in  Tate's  dock, 
>t.  Lawrence  and 
)ally  as  a  freight 
a  place  approved 
in  the  dock  until 
vigated,  or  being 
iiat  the  words  in 
ite  constituted  a 
;  the  summer  and 


WARRANTY   AND   REPRESENTATION. 


717 


be  laid  up  in  the  winter,  but  having,  in  fact,  never  left 
the  dock  at  all,  the  assured  could  not  recover.  Grant  v. 
-^tna  Ins.  Co.  Queen's  Bench,  Appeal  Side,  Montreal, 
Lower  Canada.     1860. 

§  29.  Policy  provided  that,  "  if,  subsequent  to  the 
making  of  the  applicativyn,  any  new  fact  should  exist,  either 
by  a  cnange  of  any  fact  disclosed  by  the  application,  the 
erection  or  alteration  of  any  building,  the  carrying  on  of 
any  hazardous  trade,"  <fec.,  *  *  *  *  "by  the  assured  or 
others,  which  increases  the  risk,  or  which  it  would  have 
been  necessary  to  state,  had  it  existed  at  the  time  the  ap- 
plication was  made,  the  policv  thereon  shall  be  void,  un- 
less written  notice  thereof  shall  be  given  the  directors, 
their  written  consent  obtained,"  <fe;c.  The  other  provisions 
and  covenants,  as  to  answers  in  application,  were  sub- 
stantially the  same  as  in  Tebbetts  v.  same  company,  1 
Allen,  305.  (See  Distance  of  Other  Buildings,  §  20.)  Sub- 
sequent to  the  insurance,  a  buildiug,  described  in  the  ap- 
plication, on  the  southeast  corner  of  the  main  building, 
as  "one  story  in  height,  and  20x12  feet,  and  used  for 
wool  washing,"  was  removed  and  another  put  up  in  its 
place,  two  stories  high,  and  20x30  feet,  and  used  for  dry- 
ing wool  by  means  of  stoves ;  without  any  notice  or  con- 
sent of  the  company.  Held,  that  the  non-communication 
of  such  change  and  alterations  avoided  the  policy,  wheth- 
er in  the  opinion,  of  the  jury  it  increased  tne  risk  or  not. 
Calvert  v.  Hamilton  Mut.  Ins.  Co.  1  Allen,  Mass.  308. 
186L 

§  30.  An  application  by  a  town  for  an  insurance  on 
a  school-house  stated  in  answer  to  an  interrogatory  that 
the  ashes  were  taken  up  in  metallic  vessels  which  were 
not  allowed  to  stand  on  wood  with  ashes  in  them,  and  that 
the  ashes  if  deposited  in  or  near  the  building  were  in 
brick  or  stone  vaults;  and  concluded  with  a  memorandum 
that  "  if  ashes  are  allowed  to  remain  in  wood,  the  insurers 
will  not  assume  the  risk."  The  application  was  made 
part  of  the  contract  of  insurance.  There  were  no  vaults 
of  brick  or  stone,  and  the  ashes  were  generally  deposited 
on  the  ground  at  a  distance  from  the  building ;  but  a  boy 
employed  by  the  school  committee  to  take  charge  of  the 
building  for  two  or  three  weeks  before  the  fire,  without 


.(% 


718 


WARRANTY   AND   REPRESENTATION. 


il^ 


iHj. 


iH'i 


orders,  placed  the  ashes  in  a  AV()oden  barrel  in  a  shed  ad- 
joining the  school-house.  Ilehl^  that  the  insurers  were 
discharged.  City  of  Worcester  v.  Worcester  Mut.  Fire 
Ins.  Co.  9  Gray,  Mass.  27.     1857. 

§  31.  Where  an  applicant  for  insurance  represented 
that  no  cotton  or  woolen  waste  or  rags  were  kept  in  or 
near  the  property  to  be  insured,  and  that  it  appeared  that 
at  the  time  of  the  fire  1 ,500  pounds  of  paper-rags  were  iu 
the  store ;  Jleld^  that  this  fact  did  not  avoid  the  policy,  it 
not  being  shown  that  the  representation  was  untrue  when 
made,  and  neither  the  policy,  charter  or  by-laws  of  the 
company  providing  that  the  keeping  of  such  articles 
should  invalidate  the  insurance.  Gould  v.  York  County 
Mut.  Fire  Ins.  Co.  47  Me.  403.     1859. 

§  32.  That  a  party  in  his  application  for  insurance, 
wLich  application  is  made  part  of  the  policy,  called  the 
proj)erty  ''  his  jn'operty  "  does  not  constitute  a  warranty 
on  his  i>ai-t  that  he  holds  the  fee  simple  thereof  unencum- 
bered.    Mut.  Ins.  Co.  V.  Deale,  18  Md.  26.     1861. 

§  33.  Where  statements  «'  e  made  \Vith  the  qualifica- 
tion that  they  "are  true  so  far  r.s  known  to  the  applicant 
and  material  to  the  risk,"  to  avoid  a  policy  founded  thereon 
on  account  of  a  variance  of  such  statement  from  the  facts, 
their  materiality  to  the  risk  must  appear ;  although  iu 
terms  such  statements  amount  to  a  warranty,  ^tna  Ins. 
Co.  V.  Grube,  6  Minn.  82.     1861. 

§  34.  Misrepresentations  do  not  avoid  a  policy  of  in- 
surance unless  they  are  material  to  the  risk  or  prejudicial 
to  the  insurers.  Witherell  v.  Marine  Ins.  Co.  49  Me.  200. 
1861. 

§  35.  W^arranties  in  a  policy  of  insurance,  or  in  the 
application  when  made  a  part  of  the  p  licy,  ist  be  fully 
kept  and  performed,  without  r<  i  .e  to  the  question 
whether  they  are  material  to  i  ak  or  not.  Witherell 
V.  Marine  Ins.  Co.  49  Me.  200.       S61. 

§  36.  To  make  a  stipulation  an  e:  press  warranty,  so 
that  on  the  literal  fulfilment  thereof  the  entire  contract 
shall  depend,  it  should  be  inserted  in  writing  on  the  fai-o 


TION. 

Tel  in  a  slied  ad- 
le  insurers  were 
•cester  Mut.  Fire 

ranee  represented 
s  were  kept  in  or 
t  it  appeared  that 
iper-rags  were  iu 
roid  the  policy,  it 
was  untrue  when 
)r  bydaws  of  the 
of  such  articles 
I  V.  York  County 

iion  for  insurance, 
policy,  called  the 
itute  a  warranty 
thereof  unencum- 
6.     1861. 

Vith  the  qualifica- 
1  to  the  apf)licant 
Y  founded  thereou 
mt  from  the  facts, 
Bar ;  although  iu 
anty.     ^tna  Ins. 

^id  a  policy  of  in- 
isk  or  prejudicial 
3.  Co.  4U  Me.  200. 

iur.ince,  or  in  the 

cy,  .    ist  be  fully 

to   the   question 

r  not.     Witherell 


ress  warranty,  so 
e  entire  contract 
•iting  on  the  fate 


WARRANTY    AND    REPRESENTATION. 


710 


of  the  policy,  or  in  a  detached  paper  expressb/'  stipulated 
to  be  a  part  of  the  policy.  Commonwealth  Ins.  Co.  v. 
Mouninger,  18  Ind.  352.     1862. 

§  37.  A  mere  representation,  as  distinguished  from  a 
warranty,  is  a  verbal  or  written  statement  made  by  the 
assured  to  the  underwriter  before  the  subscription  of  the 
policy,  as  to  the  existence  of  some  fact,  or  state  of  facts, 
tending  to  induce  the  underwriter  more  readily  to  assume 
the  risk,  by  diminishing  the  estimate  he  would  otherwise 
form  of  it.  Commonwealth  Ins.  Co.  v.  Monninger,  18  Ind. 
352.     1862. 

§  38.  A  want  of  truthfulness  in  a  representation  i» 
fatal  or  not  to  the  insurance,  as  it  happens  to  be  material 
or  immaterial  to  the  risk  undertaken.  Commonwealth 
Ins.  Co.  V.  Monninger,  18  Ind.  352.     1862. 

§  39.  "Where  an  applicant  for  an  insurance  covenants 
in  his  application  that  it  contains  "  a  just,  full  and  true 
exposition  of  all  the  facts  and  circumstances  in  regard  to 
the  condition,  situation,  value  and  risk  of  the  property  to 
be  insured,  so  far  as  the  same  are  known  to  the  applicant, 
and  are  material  to  the  risk ; "  and  the  policy  declares  that 
the  application  is  made  a  part  of  the  policy,  and  that  the 
policy  ''  is  made  -and  accepted  upon  the  representation  of 
the  assured  in  his  application ;  the  statements  made  in 
the  application,  if  warranties,  are  such  only  as  far  as  the 
facts  stated  "  are  known  to  the  applicant,  nnd  are  material 
to  the  risk."  Garcelon  v.  Hampden  Fire  Ins.  Co.  50  Me. 
580.     1862. 

§  40.  A  warranty  in  a  policy  is  a  contract  as  to  an 
existing  fact,  and  not  a  covenant  for  future  acts,  and  dif- 
fers from  a  representation  in  that  it  is  a  binding  agreement 
that  the  fact  is  as  warranted ;  while  a  representation  is 
not  an  agreement  that  the  fact  stated  is  so,  but  only  such 
a  statement  of  it  as  will  constitute  a  misrepresentation-  if 
it  be  untrue.  Lycoming  Ins.  Co.  v.  Mitchell,  48  Penn.  St. 
367.     1864. 

§  41.  When  at  the  time  of  applying  for  insurance, 
a  paper,  called  in  the  policy  a  survey,  is  filled  out  by  the 
applicant  and  delivered  to  the  agent  of  the  insurer,  and 


720 


WARRANTY    AND    REPRESENTATION. 


the  policy  expressly  refers  to  such  survey,  and  makes  it  a 
part  of  the  policy,  any  representation  contained  therein  is 
to  be  deemed  a  warranty.  Ripley  v.  ^tna  Ins.  Co.  30 
N.  Y.  136.     1864. 

§  42.  A  condition  to  keep  twelve  pails  full  of  water 
on  each  flat  of  the  mill  insured,  not  having  been  fulfilled, 
the  policy  is  avoided,  though  the  Joss  was  not  affected  by 
the  default.  Garrett  v.  Provincial  ins.  Co.  20  U.  C,  Q.  B. 
200.     1860. 

§  43.  Per  Mullin^  J.  A  warranty  is  a  written  stip- 
ulation in  the  policy,  or  made  part  of  it,  on  the  literal 
truth  or  fulfilment  of  which,  the  entire  contract  depends. 
A  representation  is  a  verbal  or  written  statement  hefore 
the  subscription  of  the  policy,  as  to  the  existence  of  some 
fact  tending  to  induce  a  more  ready  assumption  of  the 
risk.     Pierce  v.  Empire  Ins.  Co.  62  Barb.  636.     1862. 

§  44.  The  application  gave  as  answer,  as  to  facilities 
for  extinguishing  fires :  "  Force  pump,  and  abundance  of 
water."  Held^  the  answer  states  what  the  then  condition 
was,  and  is  no  promise  for  the  future  that  the  pump 
should  continue  in  good  order,  Gilliat  v.  Pawtucket  Mut. 
Fire  Ins.  Co.  8  R  I.  282.     1866. 

§  45.  Clause  in  policy  on  a  tannery, "  No  fire  in  or  about 
said  building,  except  one  under  kettle,  securely  imbedded  in 
masonry,  and  made  perfectly  secure  against  accidents." 
Held^  not  a  promissory  warranty,  buo  anafiSlrmance  merely 
of  condition  at  issue  of  policy.  Schmidt  v.  Peoria  Mut. 
<fe  Fire  Ins.  Cx  41  111.  295.     1867. 

§  46.  A  representation,  in  the  nature  of  a  promise 
for  future  conduct,  must  be  inserted  in  the  policy;  it  can- 
not be  shown  by  parol,  when  all  negotiations  are  consum- 
mated by  the  written  policy.  Defendants  offered  to  prove 
that  in  applying  for  insurance,  the  plaintiffs  represented 
that  the  premises  were  in.  their  possession ;  were  not  to  be 
used  for  public  exhibitions ;  that  there  was  no  fire  on  the 
premises ;  that  the  "  American  Institute "  would  not  oc- 
cupy it  again ;  and  that  after  the  insurance  was  effected, 
it  was  leased  to  said  "  American  Institute  "  for  exhibition 
of  machinery,  who  were  using  fire  therein.    The-^e  repre- 


WARRANTY   AND    REPRESENTATION. 


721 


Ml 


sentations  were  not  claimed  to  be  fraudulent,  but  were 
false.  Held,  the  evidence  was  not  admissible ;  that,  if 
such  evidence  was  intended  to  show  that  the  policy  was 
obtained  by  fraud,  it  must  be  alleged  in  the  answer.  Mayor 
of  New  York  v.  Brooklyn  Fire  Ins.  Co.  4  Keyes,  465. 
1868. 

§  47.  A  clause  that  "  it  is  expressly  agreed,  that  the 
assured  is  to  keep  ei^ht  buckets  filled  with  water  on 
the  first  floor,  and  four  m  the  basement,  ready  for  use  at 
all  times  in  case  of  fire,"  is  not  a  proviso  or  condition,  but 
an  express  agreement,  to  be  construed  by  the  same  rules 
as  other  agreements,  in  which  intent  is  an  important  ele- 
ment, which  is  that,  if  from  freezing  or  other  unavoidable 
cause  a  literal  compliance  with  ,\e  warranty  might  have 
been  impossible,  and  could  not  have  been  contemplated, 
still  the  assured  must  show  that  the  required  number  of 
buckets,  in  serviceable  condition,  were  at  the  designated 
place  ready  for  instant  use.  Aurora  Fire  Ins.  Co.  v. 
Eddy,  49  111.  lOG.     1868.     Affirmed,  in  s.  c.  55  111.  213. 

§  48.  Application  said,  that  open  lights  were  not 
used  in  the  mill.  An  open  light  was  used  in  the  office  of 
the  mill,  and  had  been  carried  once  or  twice  through  the 
mill, — but  the  mill  lights  were  enclosed  in  glass,  and  not 
open.  Open  lights  were  not  in  general  use  in  the  mill, 
nor  ever  used  there,  and  the  condition  was  not  violated. 
Ins.  Co.  of  N.  America  v.  xMcDowell,  50"I11.  120.     1869. 

§  49.  Non-compliance  with  warranties,  or  with  the 
conditions  of  insurance  attached  to  the  policy,  and  "  made 
part  thereof,"  avoids  the  contract  for  breach,  but  a  mis- 
representation must  be  as  to  material  matter,  or  with 
fraudulent  intent,  and  a  plea  of  misrepresentatio!i  must 
therefore  set  forth,  not  only  the  breach,  but  also  its  material- 
ity, or  fraudulent  character.  SemNe,  if  a  specific  inquiry  is 
made,  the  party  is  bound  to  consider  it  material.  Dewees 
V.  Manhattan  Ins.  Co.  5  Vroom  (34  N.  J.  Law),  244. 
1870. 

§  50.     Courts  do  not  favor  warranties  by  construction, 
and  terms  that  are  satisfied  as  a  description  will  not  be 
extended  to  include  a  warranty,  unless  clearly  designed. 
46 


722 


WATCHMAN. 


IT.  S.  Fire  &  Marine  Ins.  Co.  of  Baltimore  v.  Kimberly, 
34  Md.  224.     1870. 

§  51.  To  instruct  a  jury,  that  the  assured,  to  recover, 
must  prove  that  he  did  "  substantially  "  keep  a  condition, 
is  indefinite  and  misleading.  Aurora  Fire  Ins.  Co.  v.  Eddy, 
65  111.  213.     1870. 

§  52.  Question,  "  How  is  building  warmed  ?  if  any 
stoves  used,  how  secured?  " — was  answered, — "  No  stoves 
used."  Held  (as  in  Schmidt  v.  Peoria  Fire  &  Marine  Ins. 
Co.  41  111.  298),  a  representation  of  present  condition,  not 
a  continuing  one,  or  a  warranty  for  the  future.  Aurora 
Ins.  Co.  V.  Eddy,  55  111.  213.     1870. 

§  53.  Parties  to  insurance,  having  made  certain  facts 
or  representations  material,  either  by  converting  them  into 
warranties  or  by  stipulation,  further  inquiry  as  to  their 
materiality  is  ])recluded,  but  if  the  intention  to  conclude 
the  question  of  materiality  by  convention  is  not  clearly 
manifested,  the  doubts  are  to  be  resolved  in  favor  of  the 
insured.  Gerhauser  v.  North  British  &  Mercantile  Ins. 
Co.  7  Nevada,  174.     1871. 

See  Application.  §  1,  3,  4,  10,  24,  48,  49,  59.  61,  68,  72.  By-la'vs  and  Con- 
ditions, 17.  Construction,  7,  34.  Description  of  Property  Insured,  10,  20, 22, 
27,  28.  I/istnnce  of  other  Buildinjjs,  3.  Encumbrance.  23,  89,  56.  Garnish- 
ment or  Trustee  Process,  14,  Parol  Evidence,  8,  80.  Pleading  and  Practice, 
19,  20,  Questioas  for  Court  and  Jury,  2.  Responsibility  of  Assured  for  Acts 
of  Others,  9, '0.  Storing  and  Keeping.  22.  Title,  14,  60.  Use  and  Occupa- 
tion, 8,  17,  31,  74,  75.  Value,  12.  Watchman,  6.  See  also.  Application. 
Description  of  Property  Insured.  Distance  of  Other  Buildings.  Encumbrance. 
Title.     Use  and  Occupation,  and  Value. 


WATCHMAN. 


§  1.  In  answer  to  the  fourteenth  question  in  a])plica- 
tion,  "  Is  a  watch  constantly  kept  in  the  building  ?  If  not, 
state  the  arrangement  respecting  it."  Answer :  "  No  watch 
is  kept,  but  the  mill  is  examined  thirty  minutes  after  work." 
Jleliiy  that  this  statement  was  one  which  as  a  general  prac- 
tice was  bound  to  be  observed,  though  an  occasional  omis- 


WATCHMAN. 


723 


V.  Kimberly, 

d,  to  recover, 
►  a  condition, 
Co.  V.  Edd}', 

ined?  if  any 
— "  No  stoves 
&  Marine  Ins. 
ondition,  not 
ure.     Aurora 

certain  facts 
ing  tLem  into 
as  to  their 
1  to  conclude 
is  not  clearly 

favor  of  the 
ercantile  Ins. 


By-la'vs  and  Con- 
Insured,  10,  20, 22, 

39,  56.  Garnish- 
ding  and  Practice, 
f  Assured  for  Acts 

Use  and  Occnpa- 
alflo,  Application. 
gs.  Encumbrance. 


jn  in  applica- 
[dins?  If  not, 
• :  "No  watch 
p  after  work." 
',  general  prac- 
casional  omis- 


sion, owing  to  accident  or  negligence  of  workmen,  not 
sanctioned  or  permitted  by  assured,  might  not  be  a  breach 
or  non-compliance.  And  where  answer  was  made  "  that 
the  factory  was  worked  from  5  A.  M.  until  8^  P.  M. — 
jometimes  extra  work  will  be  done ; "  Held,  that  the  as- 
sured were  bound  to  make  such  examination  thirty  minutes 
after  the  cessation  of  extra  work  as  well  as  after  the  reg- 
ular work.  Held,  also,  that  the  question  of  what  is  a  ces- 
sation of  work  at  the  factory,  thirty  minutes  after  which 
the  examination  was  to  be  made,  was,  under  all  the  cir- 
cumstances of  the  case,  a  question  for  the  jury  to  deter- 
mine. Houghton  V.  Manufacturers'  Mut.  Ins.  Co.  8  Met. 
Mass.  114.     1844. 

§  2.  Where  there  is  a  warranty  that  a  "  suitable 
watch  "  will  be  kept,  it  is  not  for  the  court,  but  for  the 
jury  to  decide,  what,  under  the  circumstances  is  a  "  suita- 
ble watch."  Percival  v.  Maine  M.  M.  Ins.  Co.  33  Me. 
242.     1851. 

§  3.  The  stipulation, "  a  watchman  kept  on  the  prem- 
ises, inserted  in  the  body  of  the  policy,  immediately  after 
the  description  of  the  property  insured,  is  in  the  nature  of 
a  warranty,  and  must  be  substantially  complied  with  by 
the  assured.  But  such  expression  does  not  require  a  con- 
stant watch,  and  if  a  watchman  is  kept  in  the  manner  in 
which  men  of  ordinary  care  and  skill  in  similar  depart- 
ments keep  a  wat jhman,  it  is  sufficient.*  Evidence  of  the 
usage  of  similar  establishments  m  keeping  a  watchman,  is 
admissible,  in  an  action  on  such  policy.  Croker  v.  Peo- 
ple's Mut.  Fire  Ins.  Co.  8  Cush.  Mass.  79.     1851. 

§  L  One  of  the  questions  in  survey  which  was  made 
part  of  the  policy  was,  "  Is  there  a  watchman  in  the  mill 
during  the  night  ? "  the  answer  being,  "  There  is  a  watch- 
man nights."  The  property  was  burned  on  Sunday  morn- 
ing, when  no  watchman  was  on  duty,  he  having  left  Sat- 
urday night.  Held,  that  the  survey  contained  a  clear  and 
certain  engagement  by  the  insured  that  they  would  keep 
a  watchman  in  their  mill  through  the  hours  of  every  ni^ht 
in  the  week,  from  the  time  of  ceasing  work  in  the  evenmg 
to  the  usual  hour  of  commencing  in  the  morning,  and  this 
engagement  having  been  broken,  they  could  not  recover 


724 


WATCHMAN. 


on  the  policy.     Glendale  Manufacturing  Co.  v.  Protection 
Ins.  Co.  21  Oonn.  19.     1851. 

§  5.  The  policy  bound  assurfid  to  keep  a  night  watch 
upon  the  premises  at  all  times  during  life  of  policy.  Held^ 
that  because  the  watchman,  unknown  to  the  assured,  had 
agreed,  and  did  occasionally  look  after  a  yard  opposite  the 
one  insured,  there  was  not  such  a  non-compliance  with 
the  requirements  of  watchman  as  to  avoid  the  policy. 
Hovey  v.  American  Mut.  Ins.  Co.  2  Duer,  K  Y.  554. 
1853. 

§  6.  The  survey  was  referred  to  in  policy  as  follows : 
"  Reference  is  made  to  survey  No.  83  on  file  in  the  office 
of  the  Protection  Insurance  Company."  One  of  the  ques- 
tions in  the  survey  thus  referred  to  was,  "Is  there  a 
watchman  in  the  mill  during  the  night  \ "  Answer : 
"There  is  a  watchman  nights."  Ileld^  that  the  answer 
was  not  a  warranty,  but  a  rej^resentation,  material  to  the 
risk,  to  be  substantially  kej)t  and  peifonned,  and  there 
being  no  watchman  in  the  mill  on  Sunday  morning,  when 
it  was  destroyed,  assured  could  not  recover.  Sheldon  v. 
Hartford  Fire  Ins.  Co.  22  Conn.  235.     1853. 

§  7.  The  policy  was  based  on  a  written  application, 
which  was  made  part  of  the  jjolicy.  Question  eight  in 
such  application  was,  "  Is  there  a  watchman  in  the  mill 
during  the  nierht  {  "  Answer :  "  There  is  a  watchman 
nights."  Question:  "Is  the  mill  left  alone  at  any  time 
after  the  watchman  goes  off  duty  in  the  morning  until  he 
returns  to  his  charge  in  the  evening  ? "  Answer  :  "  Only 
at  meal  times,  and  on  the  Sabbath,  and  other  days  when 
the  mill  does  not  run."  Tlie  property  insured  was  de- 
stroyed by  fire  between  three  and  four  o'clock  in  the  morn- 
ing of  Sunday.  No  watchman  was  in  the  mill,  and  no 
watch  was  kept,  by  the  custom  of  the  mill,  from  twelve 
o'ck>ck  Saturday  night  to  twelve  o'clock  Sunday  night. 
Hehl^,  that  Sunday  niglits  were  excluded,  both  by  custom 
and  a  fair  construction  of  the  Avhole  application.  Rij)ley 
V.  ^tna  Ins.  Co.  20  Barb.  N.  Y.  552.     1859. 

§  8.  In  a  policy  of  insurance  upon  a  saw-mill,  the  as- 
sured covenanted  "  that  the  representation  given  in  the 


WATCnMAN. 


72J 


K  V.  Protection 

a  night  watch 
policy.  ITeld, 
e  assured,  had 
•d  opposite  the 
npliance  with 
id  the  policy. 
er,  N.Y.  554. 

cy  as  follows : 
le  in  the  office 
le  of  the  ques- 
i,  "Is  there  a 
i "  Answer : 
it  the  answer 
aterial  to  the 
ed,  and  there 
lorning,  when 
Sheldon  v. 


'n  application, 
5tion  eight  in 
n  in  the  mill 
a  watchman 
;  at  any  time 
ning  until  he 
swer :  "  Only 
er  days  when 
ured  was  de- 
:  in  the  morn- 
mill,  and  no 
,  from  twelve 
lunday  night, 
th  by  custom 
tion.     Ripley 


application  for  this  insurance  contains  a  just,  full,  and  true 
exposition  of  all  the  facts  and  circumstances  in  regard  to 
the  condition,  situation,  value,  and  risk  of  the  property  in- 
sured, so  far  as  the  same  are  known  to  the  assured  and 
material  to  the  risk ;  and  that  if  any  material  fact  or  cir- 
cumstance shall  not  have  been  fully  represented,  the  risk 
hereupon  shall  cease  and  determine,  and  the  policy  be 
null  and  void."  The  applicant,  to  a  question, "  Is  a  watch 
kept  on  the  premises  during  the  night  ?  Is  any  other 
duty  required  of  the  watchman  than  watching  for  the  safety 
of  the  premises  ?  "  answered,  "  A  good  watch  kept ;  men 
usually  at  work ;  watchmen  work  at  the  saws ; "  and  an- 
swered in  the  negative  this  question :  "  Is  the  building  left 
alone  at  any  time  after  the  watchman  goes  off  duty  in  the 
morning  till  he  returns  to  his  charge  in  the  evening  ? "  In 
fact,  no  watch  was  ever  kept  on  the  premises  after  twelve 
o'clock  on  Saturday  night,  or  at  all  on  Sunday  night,  other 
than  the  workmen  sleeping  there,  who  wero  instructed  to 
and  habitually  did  examine  the  mill  with  reference  to  fires 
before  going  to  bed ;  and  the  fire  occured  on  Sunday 
night,  when  no  one  was  on  the  premises.  Held,  that  the 
terms  "  good  watch  "  must  be  interpreted  to  mean  "  suit- 
able "  or  "  proper  watch ; "  and  it  was  for  the  jury  to  de- 
cide whether  the  watch  kept  was  a  suitable  and  proper  one, 
and  whether  the  risk  was  affected  by  the  watch  actually 
kept,  as  compared  with  the  one  stipulated  for.  Parker  v. 
Bridgeport  Ins.  Co.  10  Gray,  Mass.  302.     1858. 

§  9.  Warranty  to  keep  a  watchman  at  night  ou  the 
jyremises  insured  (a  mill),  is  not  released  by  the  sheriff's 
taking  possession  on  a  levy  against  the  insured ;  nor  does 
the  presence  of  the  sheriff  satisfy  the  warranty,  he  not 
undertaking  the  duty  of  watchman,  and  being  two  rods 
away,  though  he  twice  entered  the  mill  and  examined  it 
during  the  night  of  the  loss.  First  Nat'l  B'k  of  Ballston 
Spa  V.  In's.  Co.  of  North  America,  5  Lansing,  203.     1871. 

See  By-Laws  nnd  Conditions,  §  12.     Usage,  12.    Use  and  Occupation,  74. 


v-mill,  the  as- 
ffiven  in  the 


I 


WHAT  PROPERTY  IS  COVERED  BY  POLICY. 

§  1.  Policy  in  favor  of  a  coach-plater  and  cow-keeper 
on  Lis  "  stock  in  trade,  household  furniture,  linen,  wearing 
apparel,  and  plate."  The  fire  consumed,  among  other 
thinffs,  a  large  stock  of  linen-drapery  goods.  HeW.,  on  the 
maxmi  of  '■'■  noscitur  a  aociis"  that  the  policy  intended 
household  linen  or  apparel,  and  did  not  cover  the  stock 
of  linen  goods.  Watciiorn  v.  Langford,  3  Camp.  N.  P. 
422.     1813. 

§  2.  Where  one  con<lition  of  the  policy  provided  that 
"jewels,  plate,  medals,  or  other  curiosities,  paintings  and 
sculpture,  shall  not  be  included  in  any  insurance,  unless 
specified  in  the  policy,"  and  among  the  items  of  house- 
hold furniture,  for  the  loss  of  which  the  assured  claimed, 
were  included  five  portraits,  with  their  frames,  twelve 
silver  table  spoons,  twelve  tea  spoons,  and  a  silver  sugar 
tongs ;  the  court  charged  the  jury,  that  although  "  plate 
and  paintings;"  were  not  covered  by  the  policy,  unless 
specified,  yet  he  doubted,  whether  the  condition  could  be 
applied  to  the  portraits,  or  silver  spoons  specified  in  the 
assured's  schedule.  Moadinger  v.  Mechanics'  Fire  Ins. 
Co.  2  Hall,  N.  Y.  490.     1829. 

§  8.  Where  policy  described  the  property  insured  as 
"contained  in  a  frame  dwelling-house  and  bake-house, 
front  and  rear,  situated  at  No.  17  Thomas  street;"  Held, 
that  assured  could  not  recover  for  the  loss  of  thirty  bar- 
rels of  flour,  stored  in  a  shed  leading  from  the  bake-house 
to  the  front  house.  Moadinger  v.  Mechanics'  Fire  Ins.  Co. 
2  Hall,  N.  Y.  490.     1829. 

§  4.  Where  policy  read  as  follows :  "  One  thousand 
dollars  on  his  stock  in  trade,  as  a  baker,"  <fec. ;  fleld^  that 
the  words  "  stock  in  trade "  must  have  a  more  extended 
signification  than  when  applied  to  the  business  of  a  mer- 
•  chant,  and  that  in  this  case,  they  covered  all  the  tools  and 
implements  necessary  for  carrying  on  the  business  of  as- 
sured, and  therefore  included  his  norse  and  cart,  as  well 
as  articles  in  his  house.  Moadinger  v.  Mechanics'  Fire 
Ins.  Co.  2  Hall,  N.  Y.  490.     1829. 


surance,  unless 


luics'  Fire  Ins, 


It 


WHAT   PROPERTY   IS   COVERED   BY   POLICY. 


727 


§  6.  A  policy  on  gasometers,  and  another  on  fixtures, 
"belonging  to  and  rented  by  the  company,  placed  or  to  be 
placed,  in  the  buildings,  stores,  and  dwellings  of  subscrib- 
ers;"  Held,  to  include  all  gasometers  and  fixtures 
erected  and  made  after  dates  of  the  policies,  as  well  as 
those  existing  and  already  placed  at  time  policies  issued ; 
and  although  the  value  of  the  gasometers  and  fixtures  at 
time  of  insurance,  was  respectively  but  $2,000  and  $5,000, 
and  at  time  of  fire  had  been  increased  to  $20,000  and 
$100,000,  assured  was  yet  entitled  to  recover  all  loss  and 
damage  on  any  of  them,  not  exceeding  amount  insured. 
New  York  Gas  Light  Co.  v.  IVIechanics'  Fire  Ins.  Co.  2 
Hall,  N.  Y.  108.     1829. 

§  6.  "  House,"  embraces  everything  appurtenant  and 
necessary  to  the  main  building.  Therefore,  where  a  house 
is  insured,  and  it  evidently  appears,  from  payment  of  the 
premium  commensurate  with  the  entire  value  of  the 
whole,  that  a  back  building  was  included  in  the  insurance, 
it  will  be  considered  as  accessory  to  the  main  building 
and  hence  embraced  by  the  policy.  Workman  v.  Insur- 
ance Co.  2  La.  507.     1830. 

§  7.  A  policy  on  "wearing  apparel,  furniture,  and 
stock  of  a  grocery  "  will  not  cover  "  linen  and  sheets," 
smuggled  and  secretly  offered  for  sale.  A  watch,  being  a 
memorandum  Article,  is  not  embraced  in  a  policy  on  "fur- 
niture and  wearing  apparel,"  unless  specially  insured. 
Clary  v.  Protection  Ins.  Co.  Wright,  Ohio,  227.     1833. 

§  8.  Where  a  policy  covered  "  furniture "  generally, 
in  a  house  which  was  described,  without  mentioning  that 
part  of  it  was  stored  in  the  garret  and  but  rarely  used,  it 
IS  sufilcient  to  authorize  a  recovery  for  the  whole  loss,  as 
well  for  that  in  the  garret,  as  for  that  in  daily  use  in  the 
main  building.  Clark  v.  Firemen's  Ins.  Co.  18  La.  431. 
1841. 

§  9.  In  a  policy  on  a  "  new  bark  now  being  built  at 
Butler's  ship  yard  at  Baltimore ; "  Jlekl,  that  material  and 
other  work  prepared  to  be  put  on  it,  and  lying  in  the 
ship-yard  and  in  sail-lofts  therein,  wfere  not  covered  by  the 
policy,  until  actually  built  in  the  bark.  Mason  v.  Frank- 
lin Ins.  Co.  12  Gill  &  John.  Md.  468.     1842. 


i  ! 


I     ! 


728 


WHAT  PROPERTY    IS   COVERED   BY   POLICY. 


§  10.     Furniture  and  movables  are  chattels,  not  fix 
tures,  and  not  covered  by  a  policy  on  "  fixtures."     Holmes 


mes 
1845. 


I 


v.  Charlestown  Mut.  las.  Co.  10  Met.  Mass.  211. 

§  11.  A  policy  on  an  "unfinished  house"  does  not 
cover  wood-work  prepared  for  that  house,  and  deposited 
in  an  adjoining  one,  which  was  also  insured.  Ellmaker  v. 
Franklin  Fire  Ins.  Co.  5  Penn.  St.  183.     1847. 

§  12.  A  ship-l)uilder  insured  "  on  his  stock  of  timber, 
including  planks,  futtocks,  knees,  locusts,  standards  and 
stagings."  Held,  that  "  locust  capstans,''  partly  prepared 
for  the  vessels  which  the  insured  was  building,  were  cov- 
ered and  jirotected  hy  the  policy.  Webb  v.  National  Fire 
Ins.  Co.  2  Sandf.  N.  Y.  497.     1849. 

§  IB.  In  the  case  of  a!i  insurance  on  a  ship-builder's 
stock  of  timber,  contained  in  a  yard  bounded  by  certain 
streets  and  the  river;  IleM,  ^hat  evidence  to  prove  a 
usage  of  ship-builders  to  ])lace  th  jir  timber  on  the  sides  of 
adjoining  streets,  as  much  as  in  the  yard  proper,  was 
properly  admissible;  and  if  proven,  that  assured  mi^lit 
recover  for  timber  so  phiced.  Webb  v.  National  F'ire  Ins. 
Co.  2  Sandf.  N.  Y.  497.     1849. 

§  14.  A  clause  in  a  policy  covering  jewelry  and  cloth- 
ing, bein^  stock  in  trade,  does  not  include  such  articles  as 
musical  instruments,  surgical  instruments,  ^uns,  pistols, 
and  books.  Kafael  v.  Nashville  Marine  it  Fire  Ins.  Co.  7 
La.  An.  244.     1852. 

§  15.  A  policy  of  insurance  on  goods,  described  them 
as  being  "  in  the  stoi'e  part "  of  the  building.  Afterwards 
they  were  removed  to  the  second  and  third  stoiies,  and  at 
time  of  fire  were  still  there,  whilst  the  store  part  was  oc- 
cupied by  other  parties.  Held,  that  these  goods  were  not 
within  the  spirit  or  letter  of  the  policv.  Bovnton  v.  Clin- 
ton &.  Essex  Mut.  Ins.  Co.  16  Barb.  N.  Y.  254.     1853. 

§  16.  A  policy  issued  to  plaintifts  on  a  ship  in  ship- 
yard, was  subsequently  endorsed  as  follows :  "  This  insur- 
ance is  transferred  to  cover  a  barque  (on  the  stocks  near 
said  ship)  building  for  Howes,  Godfrey  &,  Co.,  with  privi- 
lege to  build  another  vessel  alongside."     A  fire  then  oc- 


WHAT   PROPERTY    IS    COVERED    BY    POLICY. 


729 


curred,  destroying  four  Ijuudred  and  sixty-two  pieces  of 
timber,  which  had  been  prepared  and  wei-e  intended  to  be 
put  into  the  barque,  and  were  lying  near  the  barque  for 
that  pui-pose,  and  were  rendered  valueless  for  any  other 
use.  The  assured  made  claim  for  the  loss  of  these  sticks 
of  timber.  Held,  that  the  policy  did  not  cover  them  un- 
til they  became  a  part  of  the  barque  by  beincr  fixed  to  or 
in  it.  Hood  v.  Manhattan  Fire  Ins.  Co.  1  Kern.  N.  Y. 
532.     1854.     Keversing,  2  Duer,  N.Y.  101.     1853. 

§  17.  The  terms,  "  on  their  stock  of  watches,  watch 
trimmings,"  <fec..  Held,  to  include  the  entire  stock  of  plaint- 
iff, including  plate,  silver-ware,  and  the  tools  of  the  trade, 
and  such  other  goods  as  form  part  of  similar  stocks  in 
Boston,  all  being  covered  hy  the  comprehensive  "  <fec." 
Crosby  v.  Franklin  Ins.  Co.  5  Gray,  Mass.  504.     1855. 

§  18.  Policy  on  English,  American,  and  West  India 
goods  does  not  cover  tea  and  nutmegs,  they  being  neither. 
Huckins  v.  People's  Mut.  Ins.  Co.  11  Fost.  N.  li.  238. 
1855. 

§  19.  A  policy  of  insurance  upon  a  "  steam  saw-mill" 
does  not  mean  mere^  the  building  itself,  but  includes  the 
whole  machinery  necessary  to  make  it  a  steam  saw-mill  in 
all  its  parts.  Bigler  v.  Ne^v  York  Central  Ins.  Co.  20 
Barb.  N.Y.  635.     1855. 

§  20.  The  property  insured  was  described  in  the  pol- 
icy as  "  their  road  furniture,  consisting  of  locomotive 
engines,  cars  of  all  descriptions,  and  snoAv  plows,  on  the 
line  of  their  road,  and  in  actual  use,  but  not  in  machine  or 
repair  shops."  The  road  insured  was  the  Fitchburg  road 
and  its  Charlestown  branch,  and  the  branch  road  was  in 
the  habit  of  carrying  ice  to  the  wharf,  passing  its  cars  over 
a  "  spur "  railroad,  which  did  not  belong  to  the  road 
insured,  but  to  private  individuals.  On  such  an  occasion, 
when  the  cars  had  remained  over  night  on  the  "  spur  "  to 
discharge  into  an  ice  house,  the  latter  caught  fire,  which 
being  communicated  to  the  cars,  destroyed  them.  Held, 
that  it  being  in  the  usual  course  of  the  business  of  the 
assured  to  use  their  cars  in  this  manner,  the  entire  line 
became  by  adoption,  to  all  practical  purposes,  their  line  of 


,.  ( 


i   ; 


'■I 


730 


WHAT  PROPERTY   IS   COVERED   BY   POLICY. 


road,  and  the  cars  were  in  actual  use  upon  "  the  line  of 
their  road  "  at  the  time  of  the  loss  by  nre,  and  the  road 
might  recover  for  the  loss  of  them.  Fitchburg  Railroad 
Co.  V.  Charlestown  Mut.  Ins.  Co.  1  Gray,  Mass.  64.     1856. 

§  21.  The  words  "  starch  manufactorv,"  in  a  descrip. 
tion  in  an  insurance  policy,  will  include  fixtures,  «fec., 
necessary  to  the  process.  Peoria  Marine  <fe  Fire  Ins.  Co. 
V.  Lewis,  18  111.  553.     1857. 

§  22.  In  the  application  and  policy  the  property  in- 
sured was  described  as  "  a  brick  dwelling-house  and  wood- 
house,"  situate,  &c.,  and  "  occupied  for  the  usual  purposes, 
by  a  tenant."  It  appeared  that  the  "  wood-house  "  was 
built  at  one  time,  had  but  one  frame,  was  all  under  one 
roof,  and  was  designed  for  one  building,  a  wood-house 
and  carriage-house  ;  the  wood  room  constituted  two-thirds 
or  more  of  the  entire  building,  and  was  separated  from 
the  caniage  room  by  a  loose  partition  about  seven  feet 
high,  whicli  extended  to  the  eaves  on  one  side,  and  not  so 
high  on  the  other  side,  leaving  a  distance  of  about  seven 
feet  between  the  top  of  the  partition  and  the  ridge  pole. 
The  company  set  up  in  defense  a  false  representation  on 
the  part  of  the  assured,  in  stating  -there  was  no  other 
building  within  four  rods  of  the  premises  insured,  claim- 
ing that  the  carriage-house,  part  of  the  wood-house,  was  a 
separate  building  which  should  have  been  mentioned; 
Jield,  that  the  "wood-house"  covered  and  included  the 
carriage-house,  and  evidence  that  the  whole  structure  was 
called  by  the  tenants  and  neighbors  the  "  wood-house " 
was  admissible.  White  v.  Mutual  Fire  Ins.  Co.  8  Gray, 
Mass.  566.     1857. 

§  23.  The  policy  msured  the  plaintiffs  to  the  amount 
of  $3,000,  "  on  their  three  and  half  story  brick  building, 
slate  roof,  coped,  occupied  as  a  patent  cordage  manufac- 
tory, situate  No.  West  Corner  of  First  and  South  Eighth 
streets,  Williamsburg,  L.  I.,  $1,000;  on  their  main  shaft- 
ing and  fixtures  contained  therein,  $1,000 ,  on  their  lignum 
vitsB  in  the  cellar  of  said  building,  $1,000."  At  time  of 
.effecting  the  insurance,  and  at  time  of  the  loss,  the  plaint- 
iffs were  the  owners  of  two  brick  buildings  on  the  oppo- 
site corners  of  South   Eighth  and  First  streets,  one  of 


WHAT  PROPERTY   18   COVERED   BY   POUCY. 


731 


whicli  was  occupied  as  a  patent  cordage  factory,  and  con- 
tained main  shafting  and  fixtures,  with  a  cellar  underneath 
which  was  used  by  the  plaintiffs  for  storing  large  quanti- 
ties of  liffnum  vitae.  The  other  building  was  occupied  as 
a  block  Kictory,  and  not  as  a  cordage  factory,  with  what  is 
called  a  basement  under  it,  and  no  cellar,  feoth  buildings 
w^ere  on  the  westerly  corners  of  South  Eighth  and  First 
streets,  the  block  factory  being  on  the  northwesterly,  and 
the  cordage  factory  on  southwesterly  corner.  The  Ijuild- 
ing  on  the  southwesterly  corner  was  destroyed  by  fire, 
and  assured  brought  suit  to  recover  for  the  loss,  whilst  de- 
fendants claimed  that  the  policy  covered  the  building  on 
the  northwest  corner,  and  not  that  on  the  southwest 
corner.  Heldy  that  the  policy  was  plain  enough ;  but  an 
ambiguity  arose  in  consequence  of  the  extrinsic  fact  that 
there  were  two  buildings  on  the  west  corners  of  First  and 
South  Eighth  streets,  of  the  same  height,  and  alike,  except 
the  cellar,  belonging  to  the  plaintiffs ;  that  this  was  a 
latent  ambiguity  raised  by  extrinsic  evidence,  and  that 
plaintiffs  might  introduce  evidence  to  show  which  was  the 
building  intended  to  be  insured ;  that  even  supposing  the 
abbreviation  "  No."  meant  north,  the  remainder  of  the  de- 
scription as  to  occupancy  would  be  inaccurate  as  applied 
to  that  building,  but  entirely  correct  as  applied  to  the 
building  on  the  southwest  corner ;  and  as,  notwithstand- 
ing the  mistake,  the  intent  was  clear  that  the  building  on 
the  southwest  corner  was  the  one  intended  to  be  insured, 
the  mistake  must  be  disregarded,  even  at  law,  without 
recourse  to  equity  for  correction.  Bun*  v.  Broadway  Ins. 
Co.  16  N.  Y.  267.     1857. 

§  24.  Three  policies  covered  merchandise  and  fix- 
tures contained  in  a  certain  building,  designated  in  the 
policy.  Subsequently  another  policy  was  obtained  of  de- 
fendants upon  a  stock  of  merchandise  "  in  the  chambers  " 
of  the  same  building.  The  goods  in  the  chambers  were 
destroyed  by  fire.  Held,  that,  it  being  proved  that  goods 
in  the  chambers  were  not  intended  to  be  included  in 
the  first  policies,  the  defendants  were  liable  for  the  whole 
loss.     Storer  v.  Elliot  Fire  Ins.  Co.  45  Me.  175.     1858. 

§  25.    Hawes  <fe  Stanley  effected  an  insurance  with 


'^■1 


i! 


732 


WHAT  PROPERTY    IS   COVERED    BY    POLICY. 


defendants  to  the  amount  of  $1,500,  as  follows,  to  wit: 
on  stock,  $150 ;  on  tools,  flasks,  niachinerv,  fixtures  and 
cupola,  $750 ;  on  patterns  and  steam  enguie,  $600,  con- 
tained in  their  "  furnace "  building  "  on  Eddy  street, 
Providence,  southerly  side,"  and  in  their  application  for 
this  policy,  being  No.  281,  represented  the  value  of  their 
stock  to  l)e  $4()0  ;  of  their  tools,  flasks,  Arc,  to  be  $2,500 ; 
and  of  their  pattei'ns  an«l  steam  engine  to  be  $2,000. 
At  the  expiration  of  this  policy  the  same  firm  applied  for 
a  renewal,  with  request  to  defendants  to  '  let  the  policy 
read,  $150,  on  stock,  raw,  wrought,  and  in  process;  $750, 
on  tools  and  flasks;  $600,  on  fixtures,  cupola,  and  pat- 
terns; situate  in  rear  of  82  and  84  Eildy  street,  Provi- 
dence." 

In  answer  to  the  question  in  application  for  this  policy, 
^'  Have  any  alterations  been  made  in  or  about  the  ]>ro])- 
erty  insured,  since  your  last  application,  materially  affect- 
ing the  risk?  If  so,  state  what ;"  the  reply  was:  "Boiler 
and  steam  engine  have  ])een  removed."  The  policy  num- 
bered 412  was  then  issued,  conforming  in  all  respects,  as 
to  amounts  insured,  and  situation  of  the  proj)ertv,  to  the 
request  of  the  assured.  Upon  the  expiration  of  this  second 
policy,  a  third  policy,  numbered  619,  the  one  in  suit,  was 
issued,  in  all  respects  like  the  preceding  one,  412,  except 
that  619  was  issued  in  name  of  the  "  Eddy  Street  Iron 
Foundry,  of  Providence,"  the  firm  of  Hawes  &  fc^tanley 
having  been  incorporated  by  that  name.  The  by-laws  of 
the  company  limited  them  to  insurances  of  three-fourths 
the  value  of  the  property,  and  tlie  printed  rules  of  the 
company  appended  to  the  policy,  stated  as  amongst  the 
"  matters  which  will  vacate  a  policy,"  "  or  if  there  shall  be 
an  enlargement,  alteration,  or  addition  to  the  premises,  of 
a  character  increasing  the  risk," — "  or,  if  the  state  of  things 
in  or  about  the  buildings  insured  be  so  altered  or  changed, 
by  the  advice,  consent  or  procurement  of  the  insured,  as 
to  cause  a  material  increase  of  risk," — as  well  as  unfair 
representations  or  concealment  of  facts  material  to  the 
risk.  A  loss  occurred,  destroying  property  in  a  store- 
house on  the  premises  of  assured  in  the  rear  of  82  Eddy 
street,  and  not  in  the  furnace  building;  the  property, 
consisting  of  fiasks  and  patterns,  being  stored  for  use. 


'OLICY. 


WHAT   PROPERTY    IS   COVERED    BY   POLICY. 


733 


'ollows,  to  wit : 
y,  fixtures  and 
ine,  ^600,  con. 
Eddy  street, 
application  for 
3  value  of  their 
.,  to  be  $2,.'500 ; 
to  be  $2,000. 
rm  aj»plied  for 
'  let  the  policy 
process;  $750, 
j)ola,  and  pat- 
)•  street,  Provi- 

for  this  policy, 
bout  the  ])roi)- 
iterially  affect- 
was:  "Boiler 
le  policy  num- 
.11  respects,  as 
[•oj)ertJ',  to  the 
1  of  this  second 
e  in  suit,  was 
le,  412,  except 
ly  Street  Ii-ou 
x's  <fe  Stanley 
?he  by-laws  of 
'  three-fourths 
[  rules  of  the 
i  amongst  the 
there  shall  be 
e  premises,  of 
Jtate  of  things 
d  or  changed, 
e  insured,  as 
ivell  as  unfair 
terial  to  the 
Y  in  a  store- 
of  82  Eddy 
he   property, 
►red  for  use. 


Held,  first,  that  the  policy  was  not  confined  in  its  protec- 
tion to  the  "  furnace  building "  only,  but  by  the  second 
policy  was  made  to  include  all  the  property  of  the  as- 
sured on  their  premises  in  the  rear  of  82  and  84:  Eddy 
street,  whether  in  storehouse,  furnace  building  or  outside ; 
second,  that  the  jury  having  found  that  this  location  of 
the  property  did  not  materially  increase  the  risk,  and  the 
change  or  alteration  not  being  in  the  property  itself,  but 
in  the  policy,  extended  so  as  to  embrace  the  entire  prop- 
erty in  its  existing  situation,  there  had  been  no  violation 
of  the  by-laws  above  mentioned ;  third,  that  the  amounts 
insured  on  different  subjects,  having  been  differently  ap- 
portioned in  the  second  policy,  of  which  the  one  in  suit 
was  a  renewal,  the  statement  of  values  given  in  the  appli- 
cation for  the  first  policy,  No.  281,  could  not  be  adduced 
as  evidence  against  tliein,  of  the  value  of  the  property  in- 
sured, either  at  the  date  of  the  last  policy,  or  at  the  time 
of  the  loss,  and  that  there  was,  therefore,  no  misrepresen- 
tation, in  respect  to  such  value,  on  the  part  of  the  assured. 
Eddy  Stl'eet  Iron  Foundry  v.  Farmers'  Mut.  Ins.  Co.  5  R. 
I.  426.     1858. 

§  2C.  On  a  policy  of  insurance,  covering  a  stock  of 
goods  in  a  corner  store,  was  this  endorsement :  "  The  com- 
munication made  in  the  ailjoinin^^  stores  does  not  preju- 
dice this  insurance."  The  assured  made  a  communication 
between  the  two  stores,  and  occupied  both.  A  loss 
having  occurred,  and  claim  made  for  the  loss  of  goods  in 
both  stores ;  Ileid,  that  this  endorsement  did  not  of  itself 
extend  the  insurance  over  the  goods  in  the  adjoining  store, 
and  as  there  was  nothing  in  the  language  of  the  policy 
itself  which  necessarily  embraced  the  stock  in  such  adjoin- 
ing  store,  the  admission  of  parol  evidence  of  what  was  said 
at  time  of  application  for  the  privilege  of  such  communica- 
tion, was  to  enlarge  the  terms,  scope,  and  force  of  a  written 
contract,  and,  in  effect,  to  incorporate  a  new  provision  into  it. 
Liddle  V.  Market  Fire  Ins.  Co.  4  Bosw.  N.  Y.  179.     1859. 

§  27.  A  description  in  an  application  for  insurance  of 
a  building  as  used  "  for  the  manufacture  of  lead  pipe,"  or 
"  of  lead  pipe  only,"  includes  the  manufacture  of  wooden 
reels  on  Which  to  coil  the  lead  pipe,  if  essential  to  the 


734 


WHAT   PROPERTY   IS   COVERED   BY   POLICY. 


reasonable  and  proper  carrying  on  of  the  business  of 
manufacturing  lead  pipe.  Collins  v.  Charlestown  Mut. 
Fire  Ins.  Co.  10  Gray,  Mass.  155.     1857. 

§  28.  A  poiic}'^  of  insurance  on  goods  in  "  the  brick 
building  situated  on  Main  street  in  C,  known  as  D.  & 
Co.'s  car  factory,"  covers  goods  in  a  building  erected  as  a 
wing  against  the  rear  wall  of  D.  &  Co.'s  car  factory  on 
Main  street,  with  an  opening  through  the  wall  of  less  than 
three  feet  square,  usually  closed  by  an  iron  doo^*,  if  both 
wing  and  main  building  are  used  for  manufacturing  cars, 
and  are  known  as  "  D.  &  Co.'s  car  factory."  Blake  v.  Ex- 
change Mut.  Ins.  Co.  12  Gray,  Mass.  265.     1858. 

§  29.  A  policy  of  insurance  on  "  stock  in  trade,  being 
mostly  chamber  furniture  in  sets,  and  other  articles  usually 
kept  by  furniture  dealers,"  based  on  an  application  which 
is  made  part  of  the  contract,  for  insurance  on  "  household 
furniture,  being  my  stock  in  trade,  mostly  chamber  furni- 
ture in  sets,"  covers  paints  and  varnish  used  to  finish  the 
furniture,  if  usually  kept  by  furniture  dealers.  And  this 
notwithstanding  the  assured,  to  a  question  in  the  applica- 
tion as  to  whether  any  highly  inflammable  matter  was 
kept  in  or  near  the  premises,  answered:  "Not  to  my 
knowledge."  Haley  v.  Dorchester  Mut.  Fire  Ins.  Co.  12 
Gray,  Mass.  545.     1859. 

§  80.  Under  an  ordinary  policy  the  interest  of  a  hus- 
band in  property  conveyed  to  his  wife,  would  be  covered 
by  an  insurance  of  the  policy  as  his ;  and  if  no  inquiry 
be  made,  an  omission  to  state  the  nature  and  extent  of  his 
interest  will  not  avoid  the  policy.  Mutual  Fire  Ins.  Co. 
v.  Deale,  18  Md.  26.     1861. 

§  31.  A  firm  took  out  a  policy  of  insurance  upon 
merchandise  contained  it  a  "  new  frame  barn,  wagon  and 
ware-room,"  situated  on  an  alley  and  occi>pied  for  a  ware- 
house, and  subsequently  assigned  their  interest  in  the  pol- 
icy and  property  insured  to  others,  who  erected  a  brick 
addition  to  their  store-room  (which  was  built  upon  the 
front  of  the  lot  on  the  rear  of  which  the  frame  barn  was 
erected),  extending  it  back  to  the  alley,  and  requiring  the 
removal  of  part  of  the  barn ;  afterwards,  the  new  build- 


WHAT   PROPERTY   IS    COVERED   BY   POLICY. 


735 


iug  and  the  remnant  of  the  frame  barn,  with  their  con- 
tents, were  destroyed  by  fire.  In  an  action  against  the  in- 
surance company  for  the  insurance  upon  the  goods  in  the 
remnant  of  the  barn  and  in  the  brick  extension.  Held,  that 
no  recovery  could  be  had  under  the  policy  for  any  loss  of 
goods  in  the  new  brick  building  or  extension  of  the  store 
room,  and  if  at  all,  only  for  those  in  the  remnant  of  the 
frame  barn  and  ware-room  as  ori^cinally  erected  and  used. 
Lycoming  County  Ins.  Co.  v.  Updegraff,  40  Penn.  St.  311. 
1861. 

§  32.  If  one  partner  insure  the  partnership  property 
against  loss  by  fire  in  his  own  name  only,  and  it  does  not 
appear  that  the  insurance  was  really  intended  for  the  ben- 
efit of  the  firm,  the  premium  paid  from  the  partnership 
funds,  and  the  transaction  subsequently  ratified  by  the 
other  partners,  the  policy  will  cover  only  the  undivided  in- 
terest of  the  partner  iur  iring.  Peoria  Marine  <fe  Jbire  Ins. 
Co.  V.  Hall,  12  Mich.  202.     1864. 

# 

§  33.  An  open  policy  of  insurance  upon  merchandise 
will  not  cover  articled  kept  wholly  or  partially  for  use  in 
and  about  a  building,  but  only  articles  kept  for  sale ; 
but  an  open  policy  upon  "  property  "  contained  in  specific 
buildings  will  cover  articles  kept  tor  use  as  well  as  those 
kept  f'>r  sale.  Burgoss  v.  Alliance  Ins.  Co.  10  Allen, 
Mass.    21.     1865. 

§  34.  A  policy  of  insurance  against  fire  jiurporting 
to  cover  "  merchandise  hazardous,  not  hazardous,  and  ex- 
tra hazardous,  their  own,  or  lield  by  them  in  trust  or  on 
commission  or  joint  account,  <fe<3.,  in  all  or  any  of  the  brick 
or  stone  warehouses,  and  while  in  transitu,  or  on  any  of 
the  streets,  yards  or  wharves  in  the  cities  of  New  York, 
Brooklyn,  or  Jersey  City,  and  unless  under  the  protection 
of  a  marine  policy,  subject  to  average  clause  annexed."  To 
this  policy  was  annexed  this  provision :  "  It  is  at  the  same 
time  agreed  that  if  any  sperluc  parcel  of  goods  included  in 
the  terms  of  this  policy,  or  such  goods  in  any  specified 
building  or  buildings,  place  or  places,  within  the  limits  of 
this  insurance,  shall,  at  the  time  of  any  fire,  be  insured  in 
this  or  any  other  office,  this  policy  shall  not  extend  to  cover 
the  same,  excepting  only  so  far  as  relates  to  any  excess  of 


736 


WHAT   PROPERTY   IS   COVERED   BY    POLICY. 


value  beyond  the  amount  of  such  specific  insurance  or  in- 
surances, which  said  excess  is  declared  to  be  under  the  pro- 
tection of  this  policy,  and  subject  to  average  as  aforesaid." 
A  fire  occurred  at  one  of  the  places  where  the  insured 
had  merchandise  to  the  value  of  $386,026.  They  had  a 
specific  insurance  on  the  goods  in  that  store  to  $324,000. 
The  loss  and  damage  occasioned  by  the  fire  was  $274,192. 
In  an  action  upon  the  policy  to  recover  of  the  insurers 
pro  rata  amount  of  the  loss  in  proportion  to  the  amount 
insured ;  Held,  that  the  true  interpretation  of  the  policy 
was,  that  if  a  loss  occurred,  and  the  specific  insurance  ex- 
ceeded the  loss,  the  party  insured  was  prote^'ed  thereby, 
and  had  no  claim  under  the  general  }»  'lie,  ;  that  if  the 
specific  insurance  fell  short  of  the  loss,  the  insured  might 
recover  on  the  general  policy  for  such  excess ;  that  the 
fact  th;it  the  whole  loss  was  covered  by,  and  to  b  |>aid 
by  the  specific  insurance,  established  a  defense  une^      [\q 

Eolicy,  and  no  loss  was  chargeable  thereon.     Fairchi.d  v. 
liverpool  Sz  London  Fire  Ins.  Co.  48  Barb.  N.  Y.  420. 
1867. 

§  3.").  Two  policies  were  got  out  at  the  suuie  thiie, 
one  "on  cru<le  petroleum  contained  in  three  woocru 
tanks.''  The  other  policy  was  "on  refined  oil  in  barrels, 
<fec.  "  iWe — This  policy  does  not  attach  to  oil  in  the 
tanks.*"  The  proposition  to  show  that  the  Note  refers  to 
and  means  simply  the  oil  in  the  tanks  as  insured  in  the 
other  i)olicy,  was  Held  inadmissible  on  every  principle, 
and  even  if  otherwise,  the  oil  in  the  tanks  is  not  included 
by  the  terms  "  I'efined  oil  in  barrels."  Held,  also,  that 
"  refined  oil "  does  not  include  "  lard  oil."  Weisenberger 
V.  Harmony  F.  tt  M.  Ins.  Co.  50  Pa.  St.  442.     1867. 

^  30.  Insurance  on  a  stock  of  goods  which  are  being 
sold  from  and  replaced,  covers  as  well  the  new  purchases 
wdiich  replace  the  sold,  as  well  as  the  stock  on  hand.  City 
Fire  Ins.  Co.  of  Hartford  v.  Mark,  4':  III  482.  1867. 
Peoria  F.  cfe  M.  Co.  v.  AnnapoAV,  45  111.  86.     1867. 

§  37.  Insurance  on  chair  stock  in  a  chair  factory. 
Held,  "  factory  "  is  not  necessarily  to  be  confined  to  one 
building,  but  may  apply  to  several  used  in  connection  for  the 
same  pui'pose,  and  here  the  insurance  covered  the  stock  in 


WHAT    PROPERTY   IS   COVERED   BY   POLICY. 


737 


the  main  building  and  also  that  in  the  drying-room,  which 
was  in  the  engine  building,  connected  by  a  platform  and 
machinery  building.     Liebenstein  v.  Baltic  Fire  Ins.  Co. 

45  111.  301.     1867. 

§  38.  But  the  policy  on  stock  in  the  two-story  frame 
building  occupied  as  a  chair  factory,  <fec.,  cov^ers  only  the 
stock  in  that  specific  building,  and  both  buildings  being 
two-story  this  referred  to  the  main  building,  not  the 
engine  building.  Liebenstein  v.  iEtna  Ins.  Co.  45  111. 
301.     1867. 

§39.  Policy  on  insured's  "stock  of  clothing,  manufac- 
tured and  in  process  of  manufacture,"  excluding  liability 
for  "  loss  for  property  owned  by  any  other  party,"  unless 
such  interest  is  stated  in  the  policy,  does  not  cover  cloth 
of  another  taken  to  be  manufactured  under  an  ensjasre- 
ment  that  they  were  to  be  at  insured's  risk.  Getchell  v. 
^tna  Ins.  Co.  14  Allen,  325.     1867. 

§  40.  Policy  covered  the  "  cattle  and  hogs,  and  the 
product  of  the  same,  and  salt,  cooperage,  boxes,  and  articles 
used  in  packing  in  their  packing  establishment,  sheds  and 
;,  ards  adjoining — their  own,  or  held  in  trust  or  on  commis. 
sion."  Held^  that  tlie  words,  "  articles  used  in  packing," 
applied  to  coal  in  the  yard  shown  to  be  necessary  to  the 
packing  business,  the  quantity  being  reasonable,  coal  Ijeing 
an  article  used,  in  getting  the  "  products."  One  policy 
used  the  \'ords,  "articles  used  for  packing."  Held,  a 
wholly  unsubstantial  difference.  Phtenix  Ins.  Co.  v. 
Favorite,  49  III.  259.     1808.     Home  Ins.  Co.  v.  Favorite, 

46  111.  263.     1867. 

§  41.  Phiutiffs,  as  trustees  of  a  railroad,  procured  in- 
surance on  all  their  property  as  suchtrustees,  of  whatever 
kind  or  wherever  "  it  may  be,  provided  the  property  is  on 
premises  owned  or  occupied  by  said  trustees,  and  situate 
on  their  railroad  preiviises.in  the  city  of  Racine,  Wiscon- 
sin." Held,  to  cover  a  dredge-boat  belonging  to  the 
plaintiffs  as  trustees,  in  their  er.iploy  at  Racine,  attached 
to  th(  ir  wharf,  it  being  thereby  in  the  plaintiffs'  possession, 
and  ani^exed  to  the  railroad  premises.  Farmers'  Loan  & 
Trust  Co.  V.  Harmony  F.  «fe  M.  Ins.  Co.  51  Barl).  33.   1868. 

§  42.    Pol  icy  on  an  acid  factory,  and  on  stock,  machinery 

47 


>i 


I ' 


738 


WHAT  PROPERTY  18   COVERED   BY  POLICY. 


and  apparatus  in  and  out  of  the  factory  building,  and  co 
nectect therewith.  Held,  to  cover  all  apparatus,  <&;c.,  use 
on  the  premises  for  the  manufacture,  actual  connection  nc 
being  essential,  but  only  a  connection  in  purpose,  a 
plication  and  use.  Washington  Ins.  Co.  v.  Davison 
(d.  30  Md.  pi.     1868. 

§  43.  Fire  policy  on  two  M.  &  A.  passenger  cars  co) 
iained  in  car  house  No.  1,  and  on  locomotive  J.  H.  N 
contained  in  engine  house  No.  2 ;  loss  by  fire  while  makin 
a  trip.  Held,  the  words,  "  contained  in,''''  are  not  mere 
a  description,  but  a  limitation  of  the  risk  to  the  time  tb 
cars  are  in  the  house ;  each  car,  as  it  took  its  place  in  tur 
in  the  house,  was  insured  while  actually  there.  Annapoli 
&  Elkridge  R.  R.  Co.  v.  Baltimore  Fire  Ins.  Co.  32  Mc 
37.     1869. 

§  44.  Insurance  on  a  stock  of  goods  which  is  bein, 
constantly  sold  and  replenished,  covers  the  new  purchase 
as  they  are  made,  provided  they  become  part  of  the  stocl> 
from  which  the  sales  are  to  be  made  as  from  the  other  stocl 
Peoria  M.  &  F.  Ins.  Co.  v.  Anapow,  51  111.  283.     1860. 

§  45.  An  insurance  prima  facie  covers  only  the  a; 
sured's  legal  title,  not  the  further  equitable  rights  whie 
he  may  have  on  settlement  with  a  partner.  Bailey  \ 
Hope  ins.  Co.  56  Me.  474.     1869. 

§  46.  Insurance  on  stock  "  manufactured  or  in  proces 
of  manufacture"  covers  raw  or  unmanufactured  stocl 
Spratley  v.  Hartford  Ins.  Co.  1  Dillon,  C.  C.  392.     1871 

§  47.  Policy  on  "  the  stock,  lumber  and  goods,  mar 
nfactured  and  in  process  of  manufacture,  in  said  buihling. 
Held,  that  as  the  words,  "  in  said  buikling,"  were  not  an 
biguous  or  equivocal,  parol  evidence  could  not  be  a( 
mitted  to  show  the  circumstances  and  conversation  in  aj 
plying  for  insurance,  with  a  view  to  show  that  lunibt 
outside  the  building,  in  the  yard,  was  included  in  the  ii 
surance.  North  American  Fire  Ins.  Co.  v.  Throof,  2 
Mich.  143.     1871. 

See  Construction,  §  13,  35,  30.  Description  of  Property,  14, 17.  Encuu 
brance,  7,  88.  General  Average,  1.  Goods  in  Trust  or  on  Commission,  V 
Gunpowder,  1.  Interest  in  Policy,  2()j  27.  Other  Insurnucc,  116,  117, 14 
Parol  Evidence,  5,  6.  Renewal  of  Policy,  2,  5.  Risk,  13,  83,  34,  and  Bis 
generally. 


)   BY  POLICY. 


WHO  MAY  SUE. 

§  1.  In  case  of  assignment  of  policy  and  of  property 
insured,  under  provision  of  act  of  incorporation,  the  action 
should  be  brought  in  name  of  the  assignee.  And  when 
declaration  was  in  joint  names  of  both  assignor  and  as- 
signee; Held^  that  the  plea,  setting  up  the  assignment  from 
one  to  the  other,  was  a  good  plea  in  bar,  and  perhaps 
would  be  good  in  abatement.  Ferris  v.  North  American 
Fire  Ins.  Co.  1  HiU,  N.  Y.  71.     1841. 

§  2.  Assignee  cannot  recover  in  an  action,  in  his  own 
name,  on  the  original  contract,  although  the  company  con- 
sent to  the  assignment,  unless  there  is  a  stipulation  m  the 
policy  to  that  effect.  Jessel  v.  Williamsburg  Ins.  Co.  3 
Hill,  N.Y.  88.     1842: 

§  3.  Where  the  charter  of  a  mutual  insurance  com- 
pany provided  that  upon  the  alienation  of  any  property 
insured  the  alienee  might  have  the  policy  confirmed  and 
ratified  to  him,  and  upon  the  performance  of  certain  con- 
ditions should  have  all  the  rights  and  privileges  of  the 
original  insured ;  Held^  that  after  compliance  with  the  re- 
quirements of  the  charter  by  the  alienee  and  assignee,  an 
action  on  the  policy  might  1)6  maintained  by  the  assignee 
in  his  own  name,  but  not  in  the  name  of  the  assignor. 
Mann  v.  Herkimer  County  Mut.  Ins.  Co.  4  Hill,  N.  Y.  187. 
1843. 

§  4.  The  charter  of  a  mutual  insurance  company  gave 
to  the  purchaser  of  the  property  insured  the  same  rights 
and  privileges  as  the  owgmal  insured  possessed,  pvovi<led 
the  policy  s^iould  be  assigned  to  the  pur^-haser,  and  ratified 
and  confirmed  to  him  in  compliance  with  the  requirements 
of  the  charter.  B.  insured  in  such  company,  ^GOO  on 
dwelling,  $600  on  store  building,  and  $1,400  on  goods  in 
the  store  building,  and  subsequently  entered  into  partner- 
ship with  C,  as  to  the  goods  in  store ;  upon  being  notified 
of  which  the  company  gave  a  written  consent  that  the 
policy  should  remain  good  to  the  extent  of  $1,200  to  B., 
and  $1,400  to  B.  and  C.,  and  made  an  entry  in  their  books 
recognizing  C.  as  a  member  of  the  company,  but  the  policy 


740 


WHO    MAY     SUE. 


I'     I  ^' 


'I 


itself,  or  no  part  thereof,  was  ever  assigned  to  C.  In  an 
action  in  equity,  upon  the  policy  for  a  loss,  in  the  name  of 
B.  and  C. ;  Held,  that  no  action  in  law  could  be  maintained 
either  by  B.  or  C,  or  by  them  jointly,  for  the  loss  of  joint 
property,  but  the  consent  of  the  company  created  an  obli- 
gation  on  the  part  of  the  company,  which  was  exclusively 
the  subject  of  equitable  cognizance,  and  therefore  the  proper 
and  indeed  the  only  fonn  of  relief  to  the  assured,  and 
the  action  was  rightfully  prosecuted  in  such  court.  Bodle 
V.  Chenango  County  Mut.  Ins.  Co.  1  Comst.  N.  Y.  53. 
1849. 

§  5.  In  a  fire  policy  the  insurers,  by  an  endorsement 
thereon,  consented  that  the  loss  should  be  payable  to  W. ; 
HeM,  sufficient  in  a  declaration  for  covenant  on  the  policy, 
to  allege  that  the  loss  was  not  paid  to  the  plaintiif  or  to 
W. ;  and  that  as  sucli  endorsement  gave  W.  no  legal  in- 
terest in  the  propei-ty,  it  did  not  preclude  the  assured  from 
maintaining  an  action  in  his  own  name ;  nor  was  it  neces- 
sary to  aver  anv  order  from  \V.  in  favor  of  the  assured. 
Ketchum  v.  Protection  Ins.  Co.  1  Allen,  N.  B.  136.    1848. 

§  6.  "Where  mortgage  has  lieen  mndp  on  property  in- 
sured after  insurance,  and  policy  assigned  to  the  mortgagee 
with  the  consent  of  the  conqjany,  action  on  the  policy 
must  be  brought  in  the  name  of  the  original  insured.  But 
if  the  property  has  been  absolutely  sold,  and  policy 
assigned  to  purchaser  in  compliance  with  the  require- 
ments of  a  section  of  defendant's  charter,  giving  to  the  as- 
signee all  the  rights  and  privileges  of  the  original  insured, 
then  the  action  must  1)e  in  name  of  the  assignee.  Conover 
V.  Mutual  Ins.  Co.  3  Denio,  N.  Y.  254.  1840.  Affirmed, 
1  Comst.  N.  Y.  290.     1848. 

§  7.  Where  lessees  of  mortgaged  premises,  and  also 
heirs  of  mortgagor  (a  covenant  being  in  the  lease  "to 
keep  the  })remises  insured,")  obtained  a  policy  on  the 
property,  and  had  it  "  made  payable  in  case  of  loss  to  the 
mortgagee',"  Held,  that  the  moi'tgagee  could  maintain 
action  in  his  own  name,  and  recover  amount  of  the  loss, 
not  exceeding  his  mortgage,  although  the  property  after 
the  fire  was  sufficient  to  secure  the  Tiiortgage  debt.  Mot- 
ley V.  Manufacturers'  Ins.  Co.  29  Me.  337.     1849. 


w^> 


WHO    JIAY    SUE. 


741 


§  8.  Party  had  sold  the  premises  insured,  and  assigned 
the  policy,  with  the  consent  of  the  insurer,  to  the  purchaser, 
and  taken  back  a  mortgage  on  same  property,  and  had  the 
policy  re-assigned  to  himself,  for  security,  with  the  consent 
of  the  insurers.  Held,  that  he  could  maintain  action  on  it 
in  his  own  name.  Kingsey  v.  New  England  Mut.  Ins.  Co. 
S  Cush.  Mass.  393.     1851. 

§  9.  "Where  policy  has  been  assigned  as  security,  with 
the  consent  of  the  company,  the  assignee  may  sue  on  the 
policy  in  his  own  name.  Philips  v.  Memmack  Mut.  Fire 
Ins.  Co.  10  Cush.  Mass.  350.     1852. 

§  10.  Where  a  by-law  of  a  mutual  company  gave  all 
the  rights  of  membership  to  an  assignee  of  a  policy,  who 
might  have  had  it  confirmed  to  him  with  consent  of  the 
company,  a^  also  the  right  to  maintain  action  in  his  own 
name ;  yet,  if  there  be  no  conveyance  or  assignment  of  the 
property  insured  also,  such  action  cannot  be  maintained  in 
name  of  assignee.  Rollins  v.  Columbia  Fire  Ins.  Co.  5 
Fost.  K  H.  200.     1852. 

§  11.  Where  the  agent  of  a  manufacturing  company 
applied  for  insurance  on  the  building  and  machinery  be- 
longing to  the  company,  and  the  insurers  issued  a  policy 
to  him  as  agent  on  the  property  of  the  Lisbon  Manufactur- 
ing Co. ;  Held,  that  in  case  of  loss,  suit  might  be  main- 
tamed  by  the  agent  in  his  own  name.foi  the  recovery  of 
the  whole  loss,  the  members  of  the  company  consenting, 
though  the  agent  was  but  partially  interested.  Goodall 
V.  New  England  Fire  Ins.  Co.  5  Fost.  N.  H.  169.      1852. 

§  12.  When  "payable  in  case  of  loss  to"  the  action 
to  recover  for  loss,  must  be  brought  in  name  of  the  party 
to  the  policy  who  gives  the  premium  note  and  thereby 
becomes  a  member  of  the  company.  Nevins  v.  Rocking- 
ham Mut.  Ins.  Co.  5  Fost.  N.  H.  22.     1852. 

§  13.  A  policy  was  issued  to  B.,  without  any  general 
worda,  such  as  "  for  the  benefit  of  whom  it  may  concern," 
or  "  as  the  property  may  appear."  In  an  action  on  the 
policy  by  B.  and  L.,  the  complaint  aveiTed  an  insurance  to 
both,  on  a  joint  interest  and  a  joint  loss.  The  proof  showed 
a  joint  loss,  but  an  insurance  to  B.  alone.     Held,  a  fatal 


742 


WHO    MAY    SUE. 


variance.    Burgher  v.  Columbian  Ins.  Co.  17  Barb. 
274.     1853. 

§  14.     Policy  issued  to  plaintiff  for  $1,200  as  ft 
to  wit :   $750  on  his  dwelling-house ;  $350  on  his 
and  $100  on  his  fiuuiture;  was  made  payable  in 
loss  to  Susan  Latham,  mortgagee,  to  the  amount  of 
The  barn  was  destroyed,  and  plaintiff  brought  suit 
policy  in  his  own   name.      Ileld^  that  if  such   sui 
brought  with  the  knowledge  and  consent  of  the  moi*t 
it  might  be  maintained,  and  if  such  assent  was 
before  the  commencement  of  the  action,  the  plainti 
entitled  to  recover  his  costs,  but  otherwise,  if  such 
was  not  given  until  after  the  commencement  of  the  i 
Jackson  v.  Farmers'  Mut.  Fire  Ins.  Co.  5  Gray,  Ma? 
1852. 

§  15.  Where  party  insi!red  his  soods  in  a  n 
company,  and  mortgaged  same,  assigning  policy  wit 
sent  of  the  company  to  mortgagee,  as  collateral  seci 
Held  J  that  in  the  absence  of  any  provision  in  the  chai 
by-laws,  whereby  the  assignee  becomes  a  member  ( 
company,  the  action  in  case  of  loss  must  be  in  the  na 
the  assured,  with  whom  the  contract  was  made.  F 
V.  Belknap  County  Mut.  Fire  Ins.  Co.  10  Fost.  N.  H 
1855. 

§  16.  Insured  assigned  his  policy  to  P.,  as  colli 
security,  and  P.,  with  consent  of  the  company,  assigi 
to  R.,  also  as  collateral  security ;  but  neither  of  the  ai 
ees  had  any  interest  in,  or  lien  upon  the  property  ins 
Action  was  brought  in  the  names  of  assignor  and  assi 
Held^  that  the  assignment  of  the  policy  would  not  e 
assignee  to  maintain  an  action  in  case  of  loss;  bu 
assignor,  alone,  might  recover  on  it  to  the  extent  o 
loss.  Peabcdy  v.  Wasbington  County  Mut.  Ins.  C 
Barb.  N.  Y.  339.     1855. 

§  17.  Where  policy  provided  that,  upon  alienati 
the  property  insured  by  mortgage  or  otherwise,  the 

fagee  might  have  the  policy  assigned  and  confirm 
im,  subject  to  all  the  liabilities,  rights  and  privileg 
the  original  insured,  and  mortgagor,  whose  dwellinff-l 
was  insured  for  $1,000,  assigned  his  policy,  with  the 


SUE. 

n  Ins.  Co.  l7Barb.  N.  Y. 

tiff  for  $1,200  as  follows, 
ouse ;  $350  on  his  bam ; 

made  payable  in  case  of 
),  to  the  amount  of  $400. 
lintiff  brought  suit  on  the 
d^  that  if  such   suit  was 

consent  of  the  mortgagee, 
f  such  assent  was  given 

action,  the  plaintiff  was 

otherwise,  if  such  assent 
amencement  of  the  action, 
as.  Co.  5  Gray,  Mass.  52. 

his  ^oods  in  a  mutual 
issignmg  policy  with  con- 
gee, as  collateral  security ; 
)rovision  in  the  charter  or 
icomes  a  member  of  the 
5s  must  be  in  the  name  of 
ract  was  made.  Folsom 
.  Co.  10  Fost.  N.  H.  231. 

policy  to  P.,  as  collateral 
the  company,  assigned  it 
but  neither  of  the  assign- 
on  the  property  insured, 
of  assignor  and  assignee, 
policy  would  not  enable  " 
n  case  of  loss;  but  the 
it  to  the  extent  of  the 
Jounty  Mut.  Ins.  Co.  20 

that,  upon  alienation  of 
)  or  otherwise,  the  mort- 
igned  and  confirmed  to 
rights  and  privileges  of 
r,  whose  dwellins-house 
lis  policy,  with  the  cou- 


WHO    MAT    SUE. 


743 


sent  of  the  company,  to  the  mortgagee  of  the  dwelling- 
house,  who  paid  the  premiums  thereafter  for  the  renewals 
of  the  same ;  Held,,  that  the  assignment  with  consent  of 
the  company,  and  payment  of  the  premium  by  the  mort- 
gagee, was  a  new  parol  agreement,  made  between  com- 
pany and  assignee,  and  upon  which  the  assignee  might 
maintain  action  in  his  own  name.  Flannagan  v.  Camden 
Mut.  Ins.  Co.  1  Dutch.  N.  J.  506.     1856. 

§  18.  Where  an  insurance  company  issued  a  policy 
to  G.,  on  property  of  his,  he  giving  a  premium  note  to 
pay  such  assessments  as  should  be  made  •  against  the 
policy,  but  the  insurance  "  made  payable  in  case  of  loss  to 
B. ;"  Held,,  that  the  action  should  be  brought  in  the 
name  of  G.,  he  being  a  member  of  the  company.  Blan- 
chard  v.  Atlantic  Mut.  Fire  Ins.  Co.  33  N.  H.  9.     1856. 

§  19.  Insurance  brokers,  holding  an  open  policy  for 
themselves  and  "whom  it  may  concern,"  may  maintain 
action  in  their  own  name  for  use  of  the  owners,  although 
the  latter  are  not  named  in  the  policy,  if  it  sufficiently 
appear  that  the  insurance  was  procured  for  their  benetit. 
Protection  Ins.  Co.  v.  Wilson,  6  Ohio  St.  553.     1856. 

§  20.  An  order  "  to  pay  the  within,  in  case  of  loss," 
to  a  certain  party  named,  endorsed  on  a  policy  of  insur- 
ance, and  assented  to  by  the  company,  will  enable  such 
party  (if  he  have  an  interest  in  the  property,  and  if  the 
company  is  liable  to  pay  the  loss  to  any  one),  to  recover 
in  his  own  name  upon  a  prftper  count  upon  the  express 
promise  of  the  company  to  pay  the  loss  to  him.  Barrett 
V.  Union  Mut.  Fire  Ins.  Co.  7  Cush.  Mass.  175.  1851. 
Lowell  V.  Middlesex  Mut.  Fire  Ins.  Co.  8  Cush.  Mass.  127. 
1851.  Loring  v.  Manufacturers'  Ins.  Co.  8  Grav,  Mass.  28. 
1857. 

§  21.  An  assignee  of  a  policy  of  insurance  cannot  sue 
on  it  in  his  own  name,  although  the  company  agree  there- 
by to  indemify  the  assured  and  his  assigns.  Beeraer  v. 
Anchor  Ins.  Co.  16  Upper  Canada,  Q.  B.  485.     1858. 

§  22.  Vendee  of  property  insured  by  the  vendor,  the 
policy  being  assigned  by  him  to  ^he  vendee,  may  maintain 
an  action  on  the  policy  for  a  loss,  although  the  sale  may 


744 


WHO    MAY    SUE. 


i  ill 


appear  to  have  been  made  with  the  intent  to  defraud  the 
creditors  of  the  vendor.  Crafts  v.  Union  Mut.  Fire  Ins. 
Co.  36  N.  H.  44.     1858. 

§  23.  The  insertion  in  the  policy  of  the  words,  "loss 
if  any,  payable  to  E.  B.  G.,  mortgagee,"  operates  to  give 
the  mortgagee  the  same  rights,  and  interest  in  the  policy 
which  he  would  have,  if,  without  such  words  in  the  body 
of  the  policy,  the  mortgagor  had  assigned  the  policy  to  E. 
B.  G.,  with  the  express  assent  of  the  company.  In  an 
action  on  such  policy,  there  being  no  averment  tliat  E.  B. 
G.,  the  mortgagee,  had  been  paid ;  Held,  that  the  mort- 
gagor  alone  could  not  recover  the  amount  of  the  loss,  so 
long  as  the  mortgagee  remains  unpaid ;  and  that  the  pay- 
ment by  the  company  to  the  mortgagor,  without  the 
assent  of  the  mortgagee,  would  not  discharge  the  liability 
of  the  company  to  the  mortgagee,  and  that  mortgagee, 
therefore,  so  long  as  the  mortgage  remained  unsatisfied,  was 
a  necessary  party  to  the  action.  Ennis  v.  Harmony  Fire 
Ins.  Co.  3  Bosw.  N.  Y.  510.     1858. 

§  24.  When  a  mortgagor  takes  a  policy  of  insurance 
in  his  o^\^l  name,  with  the  clause,  "  loss  if  any  payable  to 
A.  B.,  mortgagee,"  A.  B.  only  in  such  a  case  (the  mort- 
gage being  imsatisfied)  can  maintain  an  action  for  the  in- 
surance ;  the  mortgagor  cannot  assign  the  claim  to  another, 
so  that  the  assignee  can  sustain  an  action  upon  a  loss  under 
the  policy.  Ripley  v.  ^tua  Ins.  Co.  29  Barb.  N.  Y.  552. 
1859. 

§  25.  Where  a  policy  is  issued  to  two  persons  jointly, 
both  should  join  in  bringing  an  action  for  a  breach  of  the 
contract,  and  the  omission  to  join  them  is  a  good  defense, 
either  in  abatement  or  under  the  general  issue.  If  the 
one  partner  has  assigned  all  his  interest  in  the  policy  to 
the  other,  still  he  must  proceed  in  the  name  of  the  original 
parties,  unless  he  can  show  notice  of  the  assignment  to  the 
company,  and  of  their  assent  thereto.  Tate  v.  Citizens' 
Mut.  Fii-e  Ins.  Co.  13  Gray,  Mass.  79.     1859. 

§  26.  Where  a  policy  of  insurance  is  assigned  as  col- 
lateral security,  the  action  must  l)e  brought  m  name  of 
original  insured,  unless,  by  the  assignment  and  the  assent 
of  the  company  agreeably  to  their  charter  and  by-laws,  the 


WHO    MAY    SUE. 


745 


assignee  becomes  substituterl  as  the  member  of  the  com- 
pany. Shepard  v.  Union  Mut.  Fire  Ins.  Co.  38  N.  H.  232. 
1859. 

§  27.  Wood  &  Johnson  were  partners.  By  their  ar- 
ticles of  partnership  Wood  had  the  riglit,  upon  the  disso- 
lution of  the  firm,  to  take  the  goods,  pay  Johnson  for  them, 
and  carry  on  the  business.  On  the  13th  of  August,  1851, 
defendants  insured  them  for  six  years,  upon  grain,  and 
goods  that  might  be  in  their  store  during  that  time.  The 
agreement  as  to  Wood's  right  to  buy  the  goods  and  con- 
tinue the  business  was  not  stated  in  the  a])plication  or 
made  known  to  the  defendants.  In  1852  Johnson  died, 
and  thereupon  Wood  bought  all  Johnson's  interest  in  the 
goods,  carried  on  the  business  in  his  own  name,  and  there- 
after bought  goods  on  his  own  account.  At  time  of  John- 
son's death  \V^ood  informed  the  agent  of  the  defendant  of 
the  change,  and  desii'ed  to  know  if  anything  was  necessary 
to  be  done,  in  order  to  make  the  policy  valid  and  avail- 
able to  himself,  during  the  remainder  of  the  time  for  which 
it  was  issued,  upon  goods  that  might  be  purchased  there- 
after by  himself.  The  agent  said  no  change  was  necessary, 
and  agreed  that  the  policy  should  apply  as  requested,  and 
afterwards  the  directors,  with  notice  of  Johnson's  death, 
and  that  plaintiff  was  continuing  business  on  his  own  ac- 
count, assented  to  this  understanding  and  agreement, 
treated  the  policy  as  valid  and  subsisting,  and  levied  and 
collected  assessments  on  it,  until  time  of  lire.  The  policy 
contained  no  clause  against  alienation  of  goods  insured, 
though  it  had  such  a  provision  with  reference  to  "  build- 
ings. Held,  1st,  that  after  the  change  of  partnership  and 
sale  of  the  goods  to  Wood  the  contract  was  at  an  end,  and 
Wood  could  not  recover  for  goods  subsequently  purchased 
(though  as  survivor  of  the  firm  he  might  recover  for  the 
amount  of  goods  belonging  to  the  old  firm),  unless  the 
defendants  had  agreed  or  assented  to  treat  the  policy  as  a 
policy  to  Wood  alone ;  2d,  that  in  the  absence  of  any  pro- 
vision in  the  charter,  directing  how  an  alienee  of  goods 
might  have  the  policy  confirmed  to  him,  parol  evidence  of 
what  was  said  to  and  by  the  agent,  and  of  the  company's 
assent  thereto,  was  admissible,  as  tending  to  prove  an  ex- 
press promise  made  to  Wood  that  the  pc     ^  should  con- 


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WHO    MAT    SUE. 


tinue  valid  for  tlie  protection  of  his  interest ;  3d,  that  the 
company  having  treated  the  agreement  between  Wood  and 
their  agent  as  valid,  and  acted  on  it  for  more  than  two 
years  and  up  to  the  time  of  the  loss,  such  conduct  was  a 
sufficient  ratification  of  the  agreement,  although  no  direct 
and  express  language  of  affirmation  was  shown.  Wood 
V.  Rutland  &  Addison  Mut.  Fire  Ins.  Co.  31  Vt.  552. 
1859. 

§  28.  A  policy  was  issued  to  Lewis  Beach  in  1847, 
"  Loss,  if  any,  payable  to  Brevoort  and  Odell."  In  1851, 
assured  died  mtestate,  seized  in  fee  of  all  the  property 
insured  by  said  policy,  leaving  him  surviving,  "his  widow, 
th«".  plaintiff,  and  six  children,  his  only  heirs  at  law,  all  of 
whom  were  still  living.  On  the  26th  of  August,  1851, 
th  plaintiff  was  duly  appointed  his  administratrix,  and 
slij  '•  "'tinued  to  pay  the  premiums  on  the  renewal  of  the 
policy,  i^t'dl  in  the  name  of  L.  Beach,  "  Loss,  if  any,  paya- 
ble io  B.  and  O.,"  down  to  July  9,  1856.  On  the  1st  of 
June  •.S57,  one  of  the  buildings  insured  was  totally  de- 
stroyed by  fire,  and  the  actual  loss  sustained  exceeded  the 
amount  insured.  On  the  14th  of  August,  1857,  the  mort- 
gage to  Brevoort  and  Odell  was  paid  in  full,  and  from 
that  time  they  or  either  of  them  had  no  interest  in  the 
policy.  After  payment  to  mortgagees,  the  administratrix 
commenced  suit  in  her  own  name  on  the  policy.  Heldy 
1st,  that  Brevoort  and  Odell  having  received  full  payment 
of  the  mortgage,  to  secure  the  payment  of  which  the  pol- 
icy was  assigned  to  them,  an  action  on  the  policy  need  not 
be  brought  in  their  names ;  2d,  that  had  a  loss  occurred 
between  the  time  of  the  death  of  Lewis  Beach  and  the 
24th  of  July  next  thereafter,  an  action  might  have  lain  in 
the  name  of  plaintiff,  as  administratrix,  upon  the  policy ; 
but  the  suit  (B  and  O.'s  claim  being  fully  satisfied) 
would  have  been  for  the  benefit  of  those  to  whom  the 
property  had  descended,  and  she  would  have  held  any 
money  she  might  have  recovered,  not  as  assets,  but  as  their 
trustee ;  3d,  that  at  time  of  renewal  on  19th  of  July,  1851, 
and  at  time  of  each  subsequent  renewal  of  the  policy,  and 
at  time  of  the  loss,  the  plaintiff,  as  administratrix,  had  no 
interest  in  the  property  insured ;  4th,  that  the  payment 
by  her  of  the  premiums,  and  taking  the  renewal  receipts^ 


WHO    MAT    SUB. 


74r 


no  more  entitled  her  to  sue  as  adi:  i:^  •  'atrix,  to  recover 
for  the  loss  in  question,  than  similar  payments  by  an  en- 
tire stranger  to  all  parties,  .ad  to  the  property  itself, 
would  entitle  such  stranger,  in  case  of  a  loss,  to  sue  in  his 
own  name ;  5th,  that  upon  the  facts  proved,  the  present 
plaintiff  had  no  right  of  action,  and  defendants  were  entitled 
to  judgment  dismissing  plaintiff's  complaint.  Beach  v. 
Bowery  Fire  Ins.  Co.  8  Abb.  P.  R,  N.  Y.  261,  note. 
1859. 

§  29.  "Where  a  poMcy  of  insurance  against  fire,  issued 
by  a  mutual  company,  has  been  assigned,  the  assignment 
ratified  by  the  company,  and  a  new  premium  note  given, 
and  the  assignee,  by  the  terms  of  the  charter  or  by-laws 
thereby  becomes  a  member  of  the  company,  he  may,  in 
case  ojf  loss,  maintain  an  action  on  the  policy  in  his  own 
name.  Stimpson  v.  Monmouth  Mut.  Fire  Ins.  Co.  47  Me. 
379.     1860. 

§  30.  Under  the  New  York  statute  of  1849,  to  "  ex> 
tend  the  remedies  at  law  against  foreign  insurance  compa- 
nies," which  provides  that  suits  may  be  brought  against 
such  companies  upon  any  contract  made  or  delivered  in 
that  State,  an  action  lies  upon  a  policy  issued  and  deliv- 
ered there,  by  a  resident  agent  of  a  foreign  company,  to  a 
non-resident  plaintiff.  Burns  v.  Proviacial  Ins.  Co.  35 
.  Barb.  N.  Y.  525.     1861. 

§  31.  An  agent-,  h^  whom  an  insurance  is  obtained 
in  his  own  name  for  the  benefit  of  another,  may  maintain 
an  action  upon  it.  Barnes  v.  Mut.  Fire  Ins.  Co.  45  N.  H. 
21.     1863. 

§  32.  By  the  assent  of  the  directors  of  a  mutual  insur- 
ance company,  to  an  assignment  of  a  policy  to  a  mortgagee 
of  the  property,  the  assignee  becomes  a  member  of  the 
company,  and  may  sue  in  nis  own  name  upon  the  policy  in 
case  of  loss,  where  the  by-laws  allow  such  assent  to  be  given. 
Barnes  v.  Union  Mut.  Fire  Ins.  Co.  45  N.  H.  21.    1863. 

§  33.  An  assignee  of  an  insurance  policy  cannot  main- 
tain a  suit  thereon  in  his  own  name,  unless  he  is  so  author- 
ized by  the  act  incorporating  the  insurance  company,  or  by 
the  general  law.  At  common  law,  an  action  in  the  name  of 
the  assignee  could  not  be  maintained.  New  England 
Fire  &  Marine  Ins.  Co.  v.  Wetmore,  32  111.  221.    1863. 


11 

i] 


748 


WHO    MAT    SUE. 


§  34.  Whether  au  action  on  a  policy  of  insurance 
may  be  maintained  by  an  assignee  of  the  policy,  in  his 
own  name,  where  it  has  been  assigned  with  consent  of 
the  company,  and  Dremium  note  of  assignee  has  been  re- 
ceived and  substituted  in  place  of  tlat  of  assignor: 
Query  ?  Lycoming  County  Mut.  Ins.  Co.  v.  Schreffler,  44 
Penn.  St.  269.     1863. 

§  35.  Where  in  a  policy  of  insurance,  the  loss  is 
made  payable  to  a  third  person  who  has  no  interest  in  the 
property  insured,  but  claims  the  insurance  as  collateral 
security  for  liabilities  incurred  for  the  insured,  prior  to 
the  insurance,  he  can,  in  case  of  loss,  maintain  an  action 
for  the  insurance  money,  and  recover  in  his  own  name. 
Frink  v.  Hampden  Ins.  Co.  31  How.  N.  Y.  30.     1865. 

§  36.  Upon  a  policy  of  insurance  against  fire,  issued 
to  A.,  loss,  if  any,  payable  to  B.,  the  latter  may  maintain 
an  action  in  his  own  name.  Frink  v.  Hampden  Ins.  Co. 
1  Abb.  Pr.  N.  S.  N.  Y.  343.     1865. 

§  37.  An  insurance,  in  the  name  of  a  person  aa 
executor,  inures  to  the  benefit  of  the  estate  which  he 
represents,  and  the  insurance  money  belongs  to  the  estate, 
and  can  be  sued  for  and  recovered  by  the  residuary  lega- 
tees.    Colburn  v.  Lansing,  46  Barb.  N.  Y.  37.     1866. 

§  38.  Suit  on  a  mutual  policy  which  has  been  as- 
signed is  to  be  brought  in  the  nanie  of  him  who  was 
a  member  of  the  company  at  the  time  of  the  loss.  Pierce 
v.  Nashua  Fire  Ins.  Co.  50  N.  H.  297.     1870. 

§  39.  A  policy  agrees  to  make  good  all  loss  to  the 
assured,  his  executors,  administrators  and  assigns.  Held, 
the  testator  dying  intestate,  the  contract  is  with  the  ad- 
ministrator, and  on  a  loss,  he  is  the  proper  party  to  sue, 
notwithstanding  the  change  of  title;  and  he  prosecutes 
for  the  benefit  of  those  entitled  to  the  money.  Lappin  v. 
CLarter  Oak  Fire  &  M.  Ins.  Co.  58  Barb.  325.     1870. 

See  Alienation,  §  11, 16,  26.  33,  48,  49.  Assignment,  17,  24.  By-Laws 
and  Conditions,  8.  Damages,  28.  Endoi-sements,  4.  Garnishment  or  Trustee 
Process,  5.  Insurable  Interest,  31,  89.  Interest  in  Policy,  20,  30, 43,  44,  69. 
Mutual  Companies  and  Members  of,  12.  Other  Insurance,  4,  S4.  Parol  Evi- 
dence, 3.  Pleading  and  Practice,  5,  53.  Premium  Notes,  80.  Renewal  of 
Policy,  11.    Subrogation,  14,  16.    Title,  28.    Written  Portion  of  Policy,  2. 


WRITTEN  PORTION  OF  POLICY. 

§  1.    The  insurance  was  "  against  loss  or  damage  by 
jfire "  on  "  buildings  occupied  as  a  china  factory,  and  on 
stock    finished    and  unfinished  therein."       Among  the 
printed  conditions  to  which  the  policy  was  made  subject, 
it  was  stipulated  *'  that  if  the  premises  should  be  appro  - 
priated,  applied  or  used  to  or  for  the  purpose  of  carry- 
ing on  therein  any  of  the  trades,  vocations,  or  business 
denominated  hazardous,  extra  hazardous,  or  enumerated  in 
the  memorandum  of  special  rates,  then  and  so  long,  &c., 
the  policy  should  cease  and  be  of  no  further  effect."    In 
the  list  of  extra  hazardous  trades  and  occupations  were 
included  "  carpenters  in  their  shops,  and  houses  building 
or  repairing."    In  connection  with  the  insured  establish- 
ment a  carpenter  was  regularly  employed,  and  worked  in 
the  buildings  with  bench  and  tools  in  making  shelves, 
mouldings  and  racks.    It  appearing  that  it  was  usual  to 
keep  a  carpenter  thus  employed  in  all  similar  establish- 
ments ;  Jlehl,  that  the  express  written  agreement  of  the 
company  to  insure  a  "china  manufactory,"   necessarily 
authorized  the  exercise  of  those  trades  and  avocations  in 
the  buildings  insured,  which  appertained  to  the  establish- 
ment; and  the  printed  clause  must  be  restricted  in  its 
operation  to  other  trades  than  those  required  and  neces- 
sary to  tlie  proper  coiiducting  of  the  business,  of  a  "  china 
manufactory."    Also  Hekl,  by  Cakley,.  J.,  that  the  car- 
penter thus  employed  was  not  "  carpenters  in  their  shops," 
within  meaning   of  the  prohibition.      De  Longuemare 
V.  Tradesmen's  Ins.  Co.  2  Hall,  N.  Y.  589.    1829. 

§  2.  Where  a  policy  insured  "  H.  &  D.  Cotheal,  or 
whom  it  may  concern,  loss,  if  any,  payable  to  them;'* 
Held,  that  these  words  being  written,  controlled  any 
printed  portions  in  conflict  with  them ;  and  that  these 
special  terms  of  the  policy  authorized  the  action  to  be 
brought  in  their  names,  whether  they  were  the  beneficial 
owners  of  the  property  or  not.  Jefterson  Ins.  Co.  v. 
Cotheal,  7  Wend.  N.  Y.  72.     1831. 

§  3.    Where  policy  insured  parties  against  loss  or  dam- 


V50 


WRITTEN    PORTION    OP    POLICY. 


age  by  five  on  their  "  stock  as  rope  manufacturers,"  contained 
in  a  brick  building ;  Held^  that  it  sanctioned  the  insured 
in  using  their  stock  as  rope  manufacturers  in  that  building ; 
and  one  of  those  uses  would  be  the  manufacture  of  ropes ; 
and  that  it  would  permit  there  the  business  of  a  "  rope 
maker,"  although  that  was  enumerated  among  the  specially 
hazardous  classes  of  business  in  the  policy.  But  even  if 
the  written  words  did  not  permit  the  business  of  a  "  rope 
maker,"  the  "hackling  hemp  and  spinning  it"  is  not 
*'rope  making,"  and,  not  being  prohibited  in  classes  of 
hazards,  was  allowable.  Wall  v.  Howard  Ins.  Co.  14 
Barb.  N.  Y.  383.     1852. 

§  4.  This  policy  covered  the  same  stock,  with  same 
privilege,  as  in  17  N.  Y.  194,  Harper  v.  Albany  Mutual 
Ins.  Co.  Section  6,  post^  but  condition  with  reference  to 
camphene  read  as  follows :  "  This  company  will  not  be 
liable  for  a  loss  by  fire  occasioned  by  camphene  or  other 
inflammable  liquid."  The  circumstances  and  origin  of  the 
fire  were  also  the  same.  Held^  that  in  the  privilege  granted 
of  carrying  on  a  "  printing  business,"  was  properly  included 
all  that  was  necessary  and  essent  I  in  conductmg  such  a 
business  ;  and  as  camphene  was  a  accessary  and  customary 
article  in  the  printing  business,  insurers  were  liable  for  a 
loss  occasioned  by  it  in  course  of  legitimate  use,  notwith- 
standing the  printed  exception.  But,  if  used  for  any  other 
purpose  than  such  as  was  necessary  and  incidental  to  the 
"  printing  business,"  then  the  printed  exception  became 
operative.     Harper  v.  City  Ins.  Co.  1  Bosw.  N.  Y.  520. 

1857.  Affirmed,  22  N.  Y.  441.     1860. 

§  5.  The  defendants  insured  the  plaintiff  on  his  stock 
in  trade  "  as  a  manufacturer  of  brass  clock  works."  Held^ 
that  this  was  a  license  to  him  to  use  all  such  articles  as  are 
ordinarily  employed  in  that  manufacture,  and  to  keep 
them  on  hand,  and  even  to  make  them  for  that  purpose,  if 
it  be  the  ordinary  course  of  that  trade  to  make  them  ;  al- 
though the  use  or  keeping  of  such  articles  be  prohibited 
by  the  printed  terms  of  the  policy  as  extra  nazardous. 
Bryant  v.   Poughkeepsie  Mut.  Ins.  Co.  17   N.  Y.   200. 

1858.  Same  v.  Same,  21  Barb.  N.  Y.  154.     1855. 

§  6.    The  written  portion  of  policy  read  as  follows : 


w 


WKllTEN    PORTION    OP   POLICY. 


751 


*^  on  their  printing  and  book  materials,  stock,  paper  and 
stereotjrpe  plates  and  printed  books  contained,  &c.,  and 
privileged  for  a  printing  office,  bindery  and  book  store." 
Among  the  printed  conditions,  "  camphene  on  sale,"  was 
included  in  class  of  extra  hazardous  articles,  for  which 
special  rates  were  to  be  charged ;  then,  under  this  head 
followed,  "  crmphene,  spirit  gas  or  burning  fluid  cannot 
be  used  in  the  building  where  insurance  is  eflfected,  unless 
permission  for  such  use  be  endorsed  in  writing  on  the 
policy,  and  is  then  to  be  charged  an  extra  premium."    It 
appeared  that  camphene  was  ordinarily  used  by  printers 
for  the  purpose  of  cleaning  their  type  and  plates,  and  was 
so  used  by  the  plaintiff,  and  that  the  fire  was  occasioned 
by  accidentally  dropping  a  match  into  a  pan  of  camphene 
about  to  be  used.     HeMj  1st,  that  the  prohibition  of  cam- 
phene above  referred  to  related  only  to  its  use  as  a  light- 
ing material ;  and  2d,  that  it  being  a  necessary  incident 
to  the  printing  business,  was  included  and  embraced  in 
the  general  word  "  stock,"  and  was  as  plainly  within  the 
risks  assumed  by  the  company  as  if  written  in  the  policy 
at  length.     Harper  v.  Albany  Mut.  Ins.  Co.  17  N.  Y.  194. 
1858. 

§  7.  Policy  was  issued  on  assured's  stock  of  goods 
in  his  shop  in  Meredith,  N.  H., "  under  the  provisions,  con- 
ditions and  limitations  of  the  charter  and  by-laws  of  the 
said  company."  The  policy  prohibited  the  keeping  of 
"cotton  or  woolen  waste,  or  oily  rags"  about  the  building 
insured.  The  application  stated  at  the  head,  "  no  build- 
ings will  be  insured  by  this  company  where  cotton  waste 
is  kept."  The  application  was  made  a  part  of  the  con- 
tract, and  contained  the  following  questions  and  answers : 
8.  "  Is  cotton  or  woolen  waste  or  rags  kept  in  or  near  the 
property  to  be  insured  ? "  Answer,  "  None."  9.  "  Of  what 
does  the  stock  in  trade,  on  which  insurance  is  desired,  con- 
sist ?  "  Answer,  "  All  of  goods  usually  kept  in  a  countiy 
store."  In  an  action  on  the  policy,  it  appearing  that  as- 
sured had  kept  clean  white  rags  as  a  part  of  his  stock ; 
Meld,  that  it  was  competent  for  the  assured  to  show  that 
clean  white  rags  commonly  formed  part  of  the  stock  of 
country  stores,  and  that  in  this  respect  he  had  complied 
with  the  statement  made  in  answer  to  the  ninth  interroga- 


Y52 


WRITTEN    PORTION    OF    POLICY. 


tory,  by  which  his  stock  was  described  as  bein^  that 
which  was  usually  kept  in  a  country  store.  Elliott  v. 
Hamilton  Mut.  Ins.  Co.  13  Gray,  Mass.  139.     1859. 

§  8.  Where  the  printed  condition  of  a  policy  excepted 
losses  "  caused  by  or  consequent  upon  the  bursting  or  col- 
lapsing of  a  steam-boiler  or  steam-pump,"  but  the  written 
portion  insured  the  steam-engine ;  and  the  fire  by  which 
the  insured  property  was  destroyed  was  caused  by  an  ex- 
plosion of  the  steam-boiler ;  Held^  that  there  was  a  repug- 
nancy between  the  written  and  printed  portions  of  the 
policy,  and  that  the  written  portions  must  prevail.  Hay- 
ward  V.  Northwestern  Ins.  Co.  19  Abb.  Pr.  N.  Y.  116. 
1864. 

§  9.  Where  there  is  any  repugnancy  between  the 
printed  and  written  conditions  of  a  policy,  the  written 
conditions  must  prevail.  This  rule  applied  to  excuse 
want  of  notice  of  additional  insurance  as  requii'ed  by  the 
printed  conditions  of  the  policy,  where  the  insurer  had 
written  across  its  face  "  privilege  for  $4,500  additional  in- 
surance."    Benedict  v.  Ocean  Ins.  Co.  31  N.  Y.  389.     1865. 

§  10.  Where  a  policy  contains  written  and  printed 
stipulations  which  are  inconsistent  with  each  other,  the 
written  clauses  must  control.  Goss  v.  Citizens'  Ins.  Co.  18 
La.  An.  97.     1866. 

See  Damages  Beyond  Actual  Loss,  §  3.  Other  Insurance,  04.  Storing 
or  Keeping,  6,  12, 14, 16,  21.    Use  and  Occupation,  3,  38.    Valued  Policy,  4.. 


m 


INDEX. 


The  Ite/erenee$  are  to  Paget  and  Sections. 


;e,  94.     Storing 
alued  Policy,  4. 


ADMINISTRATOR, 
ADMISSIONS, 


(See  ExECUTOB.) 
(See  EviDBNCE.) 


AFFIDAVIT  OF  LOSS, 

(See  Pbblihinart  Proofs.) 
AGENT, 

approval  of  contracts  by,  103  §  0. 

authority,  86  §  18;  37  §  23 ;  39  §  81 ;  45  §  52 ;  46  §  56 ;  49  §  67;  60 
§  71 ;  52  §  83 ;  54  §  89;  393  §  84 ;  457  §  140, 143  ;  578  §  15. 

to  accept  notice,  48  §  61. 

to  issue  policies,  34  §  9 ;  37  $  20. 

to  change  policies,  87  §  28 ;  88  §  26  ;  46  §  66. 

to  construe  interrogatories,  40  §  36 ;  51  §  78. 

to  consent  to  assignment,  35  §  12 ;  42  §  41. 

to  consent  to  other  insurance,  38  §  26 ;  48  §  62 ;  61  §  77. 

to  waive  forfeiture,  48  §  61 ;  50  §  75 ;  52  §  81,  82 ;  52  §  85;  54  §  90. 

to  waive  payment  of  premium,  48  §  64. 

to  prescribe  mode  of  payment  of  premium,  481  §  3. 

to  assume  payment. of  premium,  483  §  10. 

to  answer  as  to  condition  of  company,  316  §  8. 

to  promise  surrender  of  premium  note,  535  §  10. 

duty  of,  to  point  out  defects  to  assured  in  proofs,  895  §  41. 

to  lease  an  office,  88  §  25. 

to  receive  peliminary  proofs,  36  §  10. 

to  procure  insurance,  45  §  50. 

to  renew  policies,  45  §  51 ;  47  §  57,  58. 

to  receive  notice  of  loss,  46  §  55. 

as  to  third  persons,  43  §  48. 

of  partners  in  firm  of  agents.  30  §  27;  S5  §  92. 

bonds  of,  142  §  1,  2 ;  148  §  8,  4. 

brokers,  435  §72;  480  §  2. 

burning  by,  149  §  4. 

countersigning  by,  488  §  3 ;  208  §  1,  2. 

evidence  of  agency,  85  §  10  ;  60  §  71,  72;  61  §  76,  79;  52  §  84;  5S 
§  92 ;  139  $  47;  275  §  17, 18;  810  §  22;  568  §  17;  708  §  42. 

factors,  40  §  34. 

for  both  parties,  86  §  15, 17 ;  87  §  20 ;  89  §  30,  82 ;  47  §  59. 

fraudulent  representations  of,  47  §  50. 

in  another  agent's  district,  84  §  7 ;  275  §  17 ;  455  §  135. 

to  permit  keeping  gunpowder,  50  §  74. 

48 


754 


INDEX 


AQET^— continued. 

general  agent,  50  §  75 ;  52  §  81,  84,  85 ;  54  §  80, 00 ;  452  §  120, 131 ; 

464  §  128 ;  456  §  138  ;  457  §  142 ;  531  §  80 ;  532  §  84. 
of  which  party  is  one  the  ngent,  58  §  87,  88;  54  §  01 ;  102  §  58;  260 

§48;  262  §52;  568  §  18. 
secretary's  authority,  275  §  20 ;  296  §  111. 
authority  to  draw  drafts,  896  §  111,  112. 
knowledge  of,  or  notice  to,  85  §  14;  87  §  21 ;  89  §  28;  43  §  42;  44 

§45;  48§60,61;  40§65;  53§86;  08§40;  177§26;  260§45; 

261§46,  40;  262§58. 
mistake  of,  85  §  11 ;  87§21;  80§28,80;  41§87;  44§47;  46§54; 

49  §  66. 
neglect  to  insure,  88  §  1,  2 ;  84  §  5 ;  80  §  20 ;  40  §  85. 
neglect  of,  48  §  68;  468  §  16 ;  466  §  26. 
notice  of  other  insurance  to,  420  §  20 ;  421  §  28;  425  §  88;  420  §  48; 

480  §  52;  435  §  08 ;  437  §  78;  430  §  81 ;  450  §  111 ;  456  §  187. 
parol  insurance,  80  §  27 ;  91  §  20 ;  40  §  69 ;  54  §  89 ;  102  §  56. 
private  instructions  to,  84  §  7,  9 ;  46  §  58 ;  51  §  80 ;  52  §  85. 
ratification  of  authority  of,  40  §  83;  4.i  §  48;  275  §  19. 
revocation  of  authority  of,  34  §  8 ;  807  §  9. 
representations  of,  278  §  1 1 ;  315  §  4 ;  716  §  25. 
Bubagent,  42  §  88,  39;  46  §  54. 
surveyor,  248  §  21. 

promise  to  pay  loss,  45  §  49;  51  §  70. 
(See  ApFiiiCATiOK,  Cokbignee,  Directors,  Executor  and  Adminibtrator, 

Estoppel,  Foreign  Insurance  Companies,  President,  Becretabt.) 
AGREEMENT, 

to  insure,  157  §6;  870 §56. 

(See  Parol  Insurance.) 
ALIENATION, 

agreement  to  alienate,  58  §  10 ;  62  §  24 ;  63  §  27 ;  67  §  38 ;  71  §  51 ; 

80  §81;  82  §01;  88  §95;  129  §5;  168  §22;  861  §58;  862 §60. 
as  collateral  security,  78  §  72,  75 ;  860  §  51. 
assignments  to  secure  creditors,  76  §  66. 
bankruptcy,  83  §  97;  141  §  54. 

before  loss  avoids  policy,  58  §  8;  67  §  41 ;  74  §  60  ;  80  §  88. 
by  joint  owner,  58  §  11 ;  60  §  16 ;  61  §  21 ;  65  §  31,  32 ;  66  §  84 ;  69 

§  44 ;  70  §  48,  49;  74  §  59;  75  §  61 ;  76  §  67;  77  §  69 ;  78  §  71, 

78;  789  §4. 
by  assignor  of  policy,  61  §  21 ;  66  §  35 ;  67  §  40;  679  §  8;  80  §  82. 
by  seizure  by  government,  861  §  58. 
by  tenant  for  life,  60  §  17. 
burden  of  proof  of,  146  §  6. 

conveyance  and  mortgage  back,  66  §  1 ;  78  §  76 ;  79  §  79,  80;  84  §  98. 
and  deed  back  to  trustees,  65  §  88. 
and  lease  back,  66  §  35. 
and  bond  to  reconvey,  69  §  15. 
io  trustees,  59  §  12. 

made  for  security,  74  §  58 ;  79  §  80;  81  §  85 ;  468  §  11. 
deed  deposited  as  escrow,  57  §  6. 
descent  to  heirs,  64  §  29 ;  881  §  5  ;  82  §  89. 
does  it  destroy  lien  for  assessments,  381  §  6 ;  81  §  88. 
donation  inter  vitog,  58  §  7. 
decree,  59  §  15. 

foreclosure,  56  §  2 ;  63  §  25,  26 ;  79  §  77 ;  81  §  85,  86 ;  360  §  52.  . 
fraudulent  conveyance,  59  §  12  ;  67  §  40 ;  69  §  46. 
levy  of  execution,  60  §  19 ;  06  §  36 ;   69  §  43 ;    73  §  55 ;   74  §  37 ; 

76  §  64. 


.. 


nn)EX. 


755 


iO,121; 
58;  260 


43;  44 
[60  §45; 

46  §54; 


ALIEN  ATIOTS—continved. 

lease,  78  §  64 ;  671  §  30. 

mortgage,  57  §  5 ;   59  §  14 ;   64  §  80;  67  §  87,  80;  69  §  45,  47;  71 

§  50;  75  §  63,  63  ;  78  §  73,  74  ;  82  §  93  ;  355  §  28;  881  §  6 ;  431 

§64;  461  §7. 
notice  of,  59  §  18 ;  67  §  41 ;  78  §  68;  81  §  87. 
of  part  of  property  insured,  56  §  4 ;  60  §  18 ;  64  §  30 ;  80  §  83. 
of  partial  interest,  77  §  68;  80  §  83. 
consent  to  last  of  several  conveyances,  79  §  78. 
of  stock  of  goods,  80  §  83 ;  83  |  95. 
unauthorized  by  husband,  of  wife's  property,  81  §  84. 
mortgage  to  pay  subsisting  mortgage,  83  §  93. 
by  guardian  not  authorized,  9?  §  04. 
renewal  receipt  to  partnership  (i?i  policy  to  firm,  578  §  14.  ] 
partition,  76  §  65. 

purchase  of  stock  by  partner,  745  §  37 ;  88  §  90 ;  88  §  96. 
sale  and  resale,  66  §  3 ;  68  §  0;  59  §  13;  80  §  83. 
to  assignee,  59  §  13 ;  74  §  56;  856  §  31. 
to  assignee  of  mortgagee,  61  §  33. 
to  assignees  in  bankruptcy,  73  §  52 ;  141  §  54 ;  180  §  9. 
to  payee  of  policy,  131  §  13 ;  184  §  38 ;  459  §  4  ;  81  §  85. 
where  policy  is  payable  to  third  party,  78  §  58;  580  §  9. 
where  possession  is  retained  to  secure  purchase  money,  63  §  33 ;  80 

§81;  361  §64. 
ALTERATION, 

additions  to  buUdings,  831  §  10;  830  §  3;  834  §  6,  8;  385  §  10, 11; 

430  §  51. 
by  tenant,  85  §  5 ;  86  §  6 ;  848  §  38. 
contemplated  at  time  of  insurance,  330  §  8. 
erecting  buildings  adjoining,  150  §  3;  337  §  15. 
examination  of,  b^  company,  84  §  3, 
whether  it  must  mcrease  the  risk  to  avoid  policy,  84  §  1,  3 ;  382  §  1, 

8;  834  §7;  731  §35;  85  §7;  86  §  9. 
notice  of,  85  §  4 ;  884  §  7,  9 ;  86  §  8. 
BubJtitution  of  another  building,  716  §  88. 
where  not  communicated,  716  §  38. 
with  knowledge  or  consent  of  assured,  333  §  4. 
(See  Inobbabe  of  Risk.) 
ANSWERS, 

(See  iNTERBOOATOniBS.) 

APPLICATION, 

ambiguity  in,  93  §  25 ;  715  §  24. 

agreement  to  remove  buildings,  240  §  14. 

assured  cannot  read,  104  §  65. 

assured  tells  agent  he  is  uncertain  of  accuracy  of  plat,  235  §  28. 

diagram,  86  §  1 ;  98  §  48 ;  230  §  11 ;  241  §  16 ;  248  §  20. 

evidence  of  contents  of,  106  §  71. 

for  agent's  own  property,  301  §  28. 

given  after  issue  of  policy,  54  §  91 ;  108  §  60. 

material  misrepresentations  in,  100  §  49 ;  103  §  61 ;  106  §  70.' 

mistake  in,  89  §  30;  41  §  36;    94  §  30;    96  §  31 ;    98  §  43 ;  230  §  11 ; 

348  §  33;  433  §  87;  435  §  70;  467  §  3;  664  §  8;  665  §  6. 
no  approval  by  delay,  801  §  87. 
notice  to  agent,  860  §  45 ;  862  §  53. 
omission  in,  89  §  11 ;  90  §  18 ;  97  §  88,  89 ;  99  §  46,  47. 
parol,  106  §  73. 

parol  agreement  at  time  of,  91  §  30 ;  58  §  83. 
reference  to  survey  in  another  company,  86  §  3 ;  54  §  91 ;  106  §  68. 


756 


INDEX. 


APP  LlOATlO^—eontinued. 

statement  that  biiildinff  would  not  endanger,  287  §  8. 

two  sets  of  representations,  80  §  0. 

unanswered  questions,  104  §  02 ;  105  §  60. 

unauthorized  insertion,  41  §  87. 

valuation  in,  604  §  10 ;  60S  §  18,  14 ;  606  §  7. 

variance  between  policy  and,  02  §  28. 

when  part  of  contract,  86  §  1 :  87  §  8,  5 ;  88  §  7 ;  89  $  12, 18, 14 ;  00 

§  15;  92§24;  08  §  41 ;  00§44,45;  151  §8,4;  106  §  72. 
wbere  not  signed  by  applicant,  712  $  14:    06  §  88;   268  §  22;   254 

g  25,  27. 
where  signed  in  blank,  41  §  87 ;  08  §  26. 
where  drawn  by  agent,  87  §  21 ;   80  §  28;  40  §  86 ;  44  §  46;  00  §  17 ; 

01  §10;  06  §86;  101  §50;  450  §8;  681  §  47  ;  50  §70;  51  §78; 

62  §82;    63§86,  87,  88;   102  §58;   104  §64;    105  §70;   268 

§  54,  55. 
•  where  agent  examines  property,  02  §  21 ;  04  §  28,  20 ;  281  §  11 ;  248 

§  22;  681  §  47 ;  101  §  54;  102  S  57. 
when  a  warranty,  08  §  42 ;   100  §  18;   101  §  61 ;   101  §  62,  58 ;    108 

§  50,  61 ;  106  §  72. 
(See  Estoppel,  Wabraktt  and  Repbebentation,  Incumbbance.) 
ARBITRATION,  { 

assignment  and  bond  OPBubmission,  181  §  12. 
award,  108  §  6.  \ 

notice  of  meeting  of  arbitrators,  108  §  7. 
revocation  of  submission  to,  108  §  7. 
Scotch  decree  arbitral,  107  g  5. 

stipulation  in  policy  for,  106  §  1 ;  107  §  2,  8,  4;  108  §  0. 
where  policy  is  payable  to  mortgagee,  108  §  8. 
ASSESSMENTS, 

after  earned  premiums  are  used  up,  120  §  42. 

after  consolidation  of  companies,  114  §  18. 

after  expiration  of  policy,  113  §  14 ;  158  ^  8. 

after  forfeiture  of  policy,  118  §  85 ;   121  §  48 ;  222  §  1,  2 ;  223  §  8,  4. 

6,  6,  8 ;   224  §  0,  10,  11, 12 ;   226  §  13,  16 ;    226  §  17 ;    227  §  20; 

487  §  78 ;  7C8  §  80. 
against  one  not  a  member  at  time  of  loss,  110  §  28. 
assessments  for  costs  and  bad  debts  illegal,  172  g  7. 
authority  of  directors  to  levy,  110  §86;   124  §56;    126  §62;   127 

§76. 
by  assignee  of  company,  116  g  21. 
by  receivers,  114  §20;   118  §84;   136  §63,  66;   126  §  66;  638  §26; 

561  §  2. 
cash  funds  to  be  first  exhausted,  113  §  17;  120  §  41 ;  121  g  46. 
classification  of,  100  §2;  112  §12;   114  §19;   116  §29;  170  §2,  8; 

172  §7. 
demand  of,  118  §  38 ;  110  §  88,  80 ;  127  §  76. 
double,  126  §  64. 
equality  of,  124  §  68. 
for  losses  on  cash  policies,  331  §  0. 

for  whole  amount  of  premium  note.  111  §  8;  121  §  47;  624  §  2. 
liability  for,  ce&aeii  prima  facie  with  policy,  262  §  10. 
liability  of  assignee  for,  115  §  22;  110  §  80;  121  §  46 ;  182  g  8. 
modeof,  lllgll;   114  §20;    116  §24;   120  §48;    128  §64;   124 

§67,  60;  127  §78. 
need  not  be  made  at  every  loss  111  §  10. 
non-payment  of,  111  §  7;   182  §  8;   122  §68;  688  §4;  684  §7; 

688  g  4. 


INDEX. 


757 


18, 14 ;  90 

578. 

I  §22;  294 


^  DOS  17; 
0;  81§78; 
i§70;   268 

I  §11;  248 

2,68;    108 


223  §  8,  4. 
227  §  20; 


{§62;   127 


;  688  §26; 

§46. 

170  §2,  8; 


J4§2. 

2  §8. 

I  §54;   124 


I]  584  §7; 


ASSESSMENTS—eonftnuec?. 

non-payment  of,  by  assignor,  182  g  8;  220  §  18;  587  §  8. 

notice  of,  115  §  26;  116  §  80;   118  §  88,  84;  182  §  8;  285  §  47;  589 

§  88  ;  126  §  70. 
notice  of  meeting  to  levy,  112  g  18;  124  §  57. 
on  stock  notes,  125  §  61 ;  606  §  2. 
of  blank  per  cent.,  null,  116  81. 
payment  of,  by  administrator,  225  g  14. 
penalty  for  non-payment,  137  §  72. 

preBami)tion  as  to  necessity,  121  g  46;  118  §  15 ;  128  §  77. 
ratificatiou  under  Massachusetts  statute,  126  §  67,  68. 
record  o^  in  Massachusetts,  401  g  22. 
suUect  to  set-off,  605  g  11. 
sufficiency  of  data  for,  115  §  28. 

void,  paid  voluntarily  to  receiver,  not  recoverable,  563  §  7. 
Virginia  quotas,  109  §  1 ;  110  §  8,  4,  5,  6 ;  247  §  1. 
what  may  be  included  in,  115  §  27;  122  g  49,  51 ;   128  §  54;    127 

8  74. 
what  will  or  will  not  invalidate,  115  §  28,  25;  120  §  40. 
when  complete,  116  g  80. 
where  divided  into  classes,  119  §  37;  171  §  6. 
where  policy  is  paid  in  full,  228  §  7 ;  225  §  15 ;  227  §  19. 
where  made  before  loss,  113  §  16;  124  §  59 ;  126  §  69;  537  §  28. 
(See  Estoppel,  Lien  of  Insurer  for  Assessmpxts,  Pbemiuh  Notes.) 
ASSIGNMENT, 

after  loss,  128  §  2 ;   132  §  15, 17,  18;  188  §  19,  22,  24 ;   135  g  27,  29, 

80;  186  §  81,  32,  84,  85;  138  §  43;  110  §  50. 
approval  of  assignee's  note,  180  §  11. 

authority  to  consent  to,  35  g  12 ;  30  g  16 ;  43  g  41 ;  139  §  47. 
assessments  after,  115  §  21,  22;  182  §  8;  222  §  2. 
agreement  to  assign,  138  §  44. 
by  one  partner,  139  j  45,  46. 
annulling  policy  after  assignment,  140  §  48. 
holding  for  vendee's  benent  not  an,  141  §  51. 
ratification,  when  compellable,  141  §  58. 
in  bankruptcy,  141  §  54;  150  §  9;  72  §  52. 
as  collateral,  141  §  65i. 

suit  by  assignee,  142  §  56.  ' 

assignee  is  subject  to  all  conditions,  583  §  21. 
burden  of  proof  of  compliance  with  conditions,  130  §  11. 
by  mortgagee,  129  §  3 ;  461  §  7. 
by  r^ortgagee  to  alienee,  461  §  22. 
construction  of  certain  form  of,  132  §  14;  137  §  41. 

of  condition,  129  §6,  7. 
consent  to,  48  §  41 ;  63  §  28 ;  67  §  41 ;  129  §  6,  8 ;  130  §  10, 11 ;  182 

§14;  189  §45;  140  §49,  50. 
equitable  assignment,  136  §  36. 
garnishment  after,  319  §  7. 

general  assignment  to  creditors,  130  §  9 ;  14  §  54 ;  72  §  52. 
inchoate  assignment,  187  g  37 ;  138  §  44. 
lien  on  policy  not  an,  879  g  56. 
mode  of,  187  §  89,  40 ;  141  §  52. 
notice  of,  129  §  4. 

notice  of  title  implied  by  consent  to,  68  §  42 ;  80  §  82 ;  81  §  87. 
of  part  of  mortgage  debt  insured,  69  §  45. 
of  policies,  128  §1;  162  §  8. 
of  policy  on  mechanic's  lien,  184  §  26 ;  135  §  28. 
of  suspended  policy,  587  §  3. 


758 


INDEX. 


ASSIGNMENT— amtinued. 

of  stock  of  insurance  company,  6S5  §  t,  2,  8,  4. 

of  void  premium  note,  808  §  17. 

order  .-n  policy  to  pay  third  party,  67  §  41 ;  181  §  13 ;  133  §  31. 

parol  agreement  for,  120  §  5. 

payment  of  loss  to  assignor,  744  §  28. 

pending  arbitration,  131  §  12. 

election  to  rebuild,  555  §  *. 
to  alienee,  5?  §  12 ;  355  §  31. 
to  fraudulent  vendee,  743  §  22. 
waiver  by  consent  to,  708  §  41. 
without  consent,  129  §  6. 
when  unnecessarv,  186  §  83. 
(See  Besponsibilitt  of  Assignee  fob  acts  of  Absionob,  Who  mat  Sue.) 
AWARD, 

(See  Abbitbation.) 
BOARD  OP  DIRECTORS, 

(See  DiBECTOBS.) 
BONDS  OP  AGENTS,  142  §  1,  2 ;  143  §  3,  4. 

BOOKS  OP  ACCOUNT  AND  VOUCHERS,  144  §  1,  2,  3 ;  145  §  4,  5,  6. 
BOOKS  OP  INSURANCE  CO., 

as  evidence,  291  §  82;  274  8  13 ;  187  §  31 ;  402  §  36. 
BOOKS  OP  ASSURED, 

as  evidence  of  amount  of  damages,  392  §  89 ;  295  ^  106. 
BROKERS,  435  §  72 ;  480  §  2. 
BURDEN  OP  PROOP, 

as  to  double  insurance,  140  §  7. 

as  to  compliance  with  conditions,  130  §  11 ;  148  §  13. 

as  to  false  swearing,  300  §  7. 

as  to  nearest  magistrate,  162  §  2. 

as  to  sufficiency  of  preliminary  proofs,  147  §  11. 

as  to  title,  146  §  5  ;  287  §  57. 

as  to  assessments,  113  §  15 ;  122  §  60. 

as  to  origin  of  fire,  147  §  9. 

of  authority  to  surrender  premium  note,  535  §  16. 

of  alienation,  146  §  6. 

of  compliance  with  promissory  warranty,  146  §  4. 

of  defence  under  pro  rata  clause,  202  §  2. 

of  increase  of  risk,  334  §  7  ;  147  §  8,  10 ;  148  §  12. 

of  interest  in  policy  for  whom  it  may  concern,  373  §  26. 

of  loss  from  "  design,  invasion,  insurrection,"  «&c.,  146  §  3. 

of  misrepresentatiotis,  146  §  1,  3;  148  §  14. 

of  notice  of  increase  of  risk,  334  §  7;  336  §  14. 

on  foreign  company  to  show  itself  authorized,  312  §  32. 

none  on  company  to  show  acceptance  of  charter  amendment,  402  §  28, 

to  show  steps  taken,  after  which  certain  remedy  is  exclusive,  700 

§11. 
of  showing  note  to  be  of  capital  stock,  415  §  2. 
presumption,  194  §  13;  265  §  4;  516  §  28. 
that  loss  was  not  caused  by  repairs,  839  §  21. 
to  show  less  interest  thap  purported  in  policy,  220  §  1. 
BURNING  BY  DESIGN, 

action  pending  indictment  for  arson,  150  §  9. 
confession  of,  when  competent,  294  §  100. 
by  agent  of  assured,  149  §  4. 
may  be  shown  by  prcdumptions,  148  §  2. 

sufficiency  of  proof  of,  148  §  1 ;  149  §  8,  5,  6,  7,  8;  150  §  10,  11 :  294 
§100. 


INDEX. 


759' 


133  §  31. 


[o  MAT  Sub.) 


5  §  4,  5,  6. 


§2. 


nient,  403  §  38. 
exclusive,  700 


I  §  10,  11 ;  304 


BY-LAWS  AND  CONDITIONS, 

approval  of  risk  by  committee,  154  §  18. 

as  to  forfeiture  for  non-payment  of  assessments,  HI,  §  7. 

as  to  keeping  a  watch,  153  §  12. 

as  to  proof  of  loss,  158  §  18 ;  154  §  16. 

as  to  interest,  153  §  14. 

as  to  policy  to  mortgagee,  153  §  15. 

as  to  increase  of  risk  by  means  of  others,  153  §  11. 

as  to  magistrate's  certificate,  165  §  14, 15. 

as  to  suspension  of  policy,  587  §  1. 

as  to  transfer  of  stock,  655  §  1.  „  ,  „  «    „„«  „  « 

as  to  venue,  153  §  9, 10;  613  §  10;  697  §  3,  3;  698  §  6,  7;  699  §  8. 

by-laws  passed  after  making  policy,  151  §  7. 

charter  of  foreign  co.  not  binding,  314  §  43. 

condition  subsequent,  reasonable  time  allowed,  344  §  45. 

how  construed,  150  §  1. 

in  fine  type,  187  §  30 ;  189  §  88 ;  531  §  81. 

parol  condition  not  binding,  345  §  46;  474  §  36;  730  §  46. 

unusual  and  not  pointed  out  to  assured,  691  §  77.  „„„  „  » 

when  part  of  policy,  150  §  3;  151  §  3,  4,  5,  7;  154  §  17,  19;  696  §  7. 

when  authorized  and  binding,  438  §  80. 

where  not  recited,  433  §  57;  517  §  38. 

(See  Limitation  Clause,  Waiver.) 

CAMPHENE,  ,  ^.  .      A-      HxaiiA 

exception  of,  applies  to  policy  on  merchandise,  156  §  4. 

meaning  of  "  occasioned  by  camphene,"  155  §  3. 

policy  avoided  by,  although  removed  before  fire,  155,  §  1. 

usages  as  to,  385  §  49. 

verbal  agreement  for  use  of,  471  §  33.  .  „  .  ;. 

when  its  use  avoids  policy,  155  §  3 ;  365  §  5 ;  681  §  46;  750  §  4,  6. 
CANCELLATION, 

an  admission  of  validity,  375  §  16. 

as  to  date  of,  157  §  4 ;  158  §  7 ;  159  §  18.         ^„„  ^  .     ,„ 

notice  when  not  a  cancellation,  159  §  10,  11 ;  160  §  15,  16. 

of  stock  notes  through  fraud,  605  §  1. 

of  premium  note,  159  §  9.  »  ^^   ^«     <««  ^  -ir 

part  premium  must  be  tendered  back,  159  §  11,  13 ;  160  1 15. 

where  agent  is  instructed  to  cancel,  and  does  not,  156  §  3;  157  §  5  ; 
160  §  15,  16. 

where  policy  had  been  assigned,  160  §  14. 

where  property  has  been  alif  nattd,  585  §  3. 

without  consent  of  assured,  156  §  1. 

CAUSE  OF  LOSS,  ,„      „       ^ 

(See  Risk.) 

CERTIFICATE  OP  LOSS,  ..„c 

burden  of  proof  as  to  sufficiency,  147  §  11.  ,  „„  .  .  ^ 

condition  precedent,  161  §  1 ;  163  §  3 ;  163  §  7;  166  §  18. 
contents  ot^  163  §  3,  4  ;  108  §  5,  8  ;  t66  §  16. 
must  be  furnished  when,  163  §  6;  108  §  3'^,  i«9  §  33. 
nearest  magistrate,  163  §  3;  164  §  10;  165  §  13,  14,  15 ;  166  §  18  ; 
167,  §  30,  31. 

I^'i^toU&itaVeiflVn:  165118;  166817,19;  "' 5  ^1  i 

168  §  33  ;  700  §  3. 

CHANGE  OF  VENUE,  „      „  . 

(See  Venue.) 

CLASSIFICATION  OP  RISKS  ,  i7A8o.i7ftR7 

assessments  in  one  class  for  losses  m  another,  170  §  2,  173  ^  7. 
contained  in  policy,  conclusive,  280  §  18. 
execution  restricted  to  particular  class,  390  §  3. 


760 


htdex. 


CLASSIFICATION  OP  HISKQ— continued. 

in  town  and  country  divisions,  109,  §  2. 

into  divisions  of  less  than  statutory  amount,  114  §  19. 

under  New  York  statute  of  1849, 170  §  1 ;  171  §  4,  5. 

warranty  of  particular  class  of  rates,  339  §  3. 

where  insurance  put  in  wrong  class,  339  §  3. 

where  made  in  violation  of  statute,  113  §  13. 
COMPROMISE,  induced  by  threats,  when  not  fraud,  318,  §  15. 
CONCEALMENT, 

by  re-assured,  173  §  4. 

calling  one's  self  owner,  363  §  60. 

dissolution  of  firm  assured,  179  §  31. 

evidence  to  rebut  charge  of,  96  §  86. 

insolvency  of  assured  and  judgment  liens,  178,  §  29. 

materiality  of,  174  §  13;  343  §  33;  503  §  58;  550  §  1;  551  §  5,  8; 
631  §7;  639  §36;  710  §  4. 

matters  as  to  which  assured  may  be  silent,  173  §  1 ;  173  §  7 ;  174  § 
9,  10,  11,  13;  175  §  13,  18;  176,  §  19,  30;  178  §  39;  179  §  31; 
330  §  6. 

matters  which  should  be  communicated,  94  §  38;  175  §  14, 17. 

non-communication  when  questions  not  put,  176  §  20;  175  §  16;  178 
§38;  653  §69. 

non-communicating  other  insurance  is  not  a  wrongful,  317  §  14. 

of  fa'*t8  presumed  to  be  known,  346  §  50, 

of  fire  in  adjacent  building,  173  §  3 ;  173  §  5 ;  175  §  16;  178  §  27. 

of  occupancy  by  gamblers.  174  §  8. 

of  threats  or  attempts  to  bum,  173  §  3 ;  177  §  33 ;  178  §  30. 

through  inadvertence,  178  §  6 ;  175  §  15 ;  176  §  31. 

through  ignorance,  176  §  31,  33. 

where  enough  is  stated  to  put  on  inquiry,  175  §  16;  178  §  80. 
(See  Distance  of  Othsr  Buildings,  Other  Insurance,  Title, 

Encumbrances.) 
CONDITIONAL  SALE, 

(See  Alienation.) 
CONDITIONS,  not  established  by  inference,  105  §  68. 
(See  By-Laws  and  CoN'-»moN8.) 
CONFESSIONS, 

(See  Burning  by  Design.) 
CONSEQUENTIAL  DAMAGES, 

for  loss  of  custom  or  profits,  179  §  1 ;  180,  §  3,  4,  6. 

for  rents,  180  §  3. 

for  wages,  180  §  4. 

for  injury  to  business,  180  §  6. 

not  recoverable,  180  §  5. 
CONSIGNEE, 

insurable  interest  of,  353  §  22. 

neglect  to  insure,  34  §  5 ;  30  §  29. 

usage  of  to  insure,  662  §  1 ;  664  §  11. 

(See  Goods  in  Trust  or  on  Commission.) 
CONSOLIDATION  OF  COMPANIES,  114  §  18. 
CONSTITUTIONAL  LAW,  402  §  28. 

(See  Foreign  Ins.  Cos.,  Insurance  Cos.,  Taxation.) 
CONSTRUCTION, 

of  vote  to  postpone  subject  of  paying  loss,  184  §  17. 

as  to  party  and  interest  insured,  376  §  86. 

by  agent,  363  §  54,  65. 

construction  as  grantee  understands  it,  189  §  80 ;  263  §  66. 

extra  hazardous  construed  tpedally  hazardous,  189  §  89. 

force  pump  does  not  include  hose,  716  §  26. 


INDEX. 


761 


1;  551  §5,  8; 

73  §7;  174  § 
89;  179  §31; 

I  14, 17. 

175  §16;  178 

317  §  14. 

;  178  §  27. 

130. 


8  §80. 

I,  TiTLB, 


N.) 


55. 


CONSTRUCTION— <ron<inM<i. 

in  case  of  ambiguity,  93  §  25;  185  §  19;  186  §  27;  715  §  24;  187  § 

32;  189  §89;  263  §  66. 
incidental  to  business  stated,  677  §  88. 
of  by-laws  and  conditions,  150  §  1 ;  184  §  16 ;  185  §  20. 
of  certain  form  of  assignment,  132  §  14, 15. 
of  clause  as  to  assignment,  129  §  6,  7. 
as  to  usuiped  power,  181  §  1. 
as  to  description  of  buildings,  229  §  1 ;  683  §  49. 
as  to  preliminary  proofs,  518  §  4. 
as  to  title,  639  §  35 ;  640  §  38,  39 ;  642  §  43. 
as  to  houses  building  and  repairing,  609  §  14. 
as  to  levy  of  execution,  184  §  18 ;  186  §  23. 
of  conditions  printed  in  fine  tyjje,  187  §  30;  189  §  38. 
of  insurance  before  issue  of  policy,  187  §  29. 
risk  on  unfinished  vessel  not  a  marine  risk,  187  §  '^t. 
of  limitation  clause,  388  §  16. 

of  note  payable  to  company  "  or  their  treasurer,"  499  §  50. 
of  notice  of  machine  "  for  burning  hard  coal,"  710  §  5. 
of  policy,  183  §  11;  184  §  14,  15;  186  §  25,  26. 
of  the  description,  181  §  3. 
punctuation  changed,  617  §  23. 
same  as  other  contracts,  188  §  34. 

terms  construed  by  knowledge  of  purposes,  188  §  36  ;  293  §  91 ;  455 
§  132;  598  §  39,  41,  42;  599  §  46,  47;  600  §  49;  001  §  53,  54; 
737  §  42. 
two  buildings  insured  in  separate  policies  not  same  contract,  188  §  33. 
what  is  in  first  story,  188  §  35. 
where  a  particular  description  is  false,  181  §  2. 
where  there  are  two  sets  of  representations,  89  §  9. 
what  conditions  apply  in  policy  on  goods,  156  §  4 ;  239  §  8 ;  240  §  13. 
whether  condition  or  proviso,  181  §  4. 
(See  Risk,  Warranty  and  Representation,  What  Property  is  Covered 

BY  Policy,  Written  Portion  of  Policy.) 
CONSTRUCTION  OP  CERTAIN  WORDS  AND  PHRASES, 
absolute  interest,  642  §  48. 
approval,  193  §  9.  . 

articles  subject  to  legal  restrictions,  186  §  22. 
articles  used  in  packing,  737  §  40. 
as  soon  as  possible,  163  §  6 ;  168  §  22 ;  389  §  18. 

(See  Preliminary  Proofs,  Time  of.) 
as  far  as  known  to  the  applicant  and  material  to  the  risk,  256  §  31. 
as  far  as  regards  the  risk,  249  §  9. 
assigns,  182  ^  6. 
assured  and  insured,  182  §  6. 
buUdings,  183  §  10. 
carpenters,  690  §  71. 
carpenters'  risk,  183  §  18. 
change  o^"  nature  of  occupation,  689  §  70. 
civil  commotion,  589  §  2. 
condition,  situation,  value  and  risk,  254  §  27. 
constantly  worked,  95  §  31. 
distilleries  and  saw  mills,  189  §  37;  102  §  55. 
duly  assigned,  133  §  20. 
during  continuance  in  office,  143  §  4. 
encumbrance,  257  §  33. 
executrix,  862  §  62;  880  §  58. 
explosive,  617  §  24. 


"^ 


762 


INDEX. 


CONSTRUCTION  OF  CERTAIN  WORDS  AND  FHRASES— continued. 
exposures,  241  §  18. 
factory,  736  §  87. 
five-Btorj  building,  238  §  15. 
fixtures,  728  §  10 ;  291  §  83.     . 
forthwith,  407  §  8,  5;  408  §  7;  410  §  15. 
(See  Notice  of  Lobs.) 
hazardous,  600  §  72. 
in  cash,  of  premiiun,  480  §  28. 
inflammable,  617  §  24. 
inn,  665  §  1. 

interest  not  absolute,  658  §  71. 

manufactured  and  in  process  of  manufacture,  738  §  46. 
mill  or  manufactory,  187  §  32. 
occasioned  by  camphene,  155  §  3. 
occupied  as  a  store,  672  §  26. 
occupied  as  a  storehouse,  283  §  36. 
other  buildings.  183  §  10;  242  §  19;  780  §  22. 
plate  and  paintings,  728  §  2. 
proprietors,  584  §  3. 

reasonable  diligence,  435  §  69 ;  486  §  73. 
refined  oil,  786  §  35. 
starch  factory,  484  §  63. 
sold,  but  not  removed,  327  §  17. 
stock  of  watches,  watch  trimmings,  &c.,  729  §  17. 
store  fixtures,  201  §  83. 
storehouse,  688  §  36 ;  689  §  68. 
storing,  828  §  2. 
subject  insured,  490  §  5. 
survey,  96  §  84  ;  104  g  64. 
tavern  keeping,  669  §  11. 
time  of  working  factory,  186  §  24. 
total  and  partial,  661  §  20. 
trust,  827  §  16. 
unoccupied,  but  to  be  occupied  by  tenant,  684  §  52. 

(See  Use  and  Occupation.) 
usurped  power,  181  §  1. 
vicinity,  188  §  12. 
water  on  each  floor,  185  §  21. 
worked  by  day  only,  663  §  7 ;  664  §  9. 
CONSUMMATION  OP  CONTRACT, 

after  interim  receipt  and  before  policy,  463  §  16;  464  §  21 ;  466  §  26. 

insurance  for  lessor  by  lessee  when  never  valid,  378  §  51. 

when  contract  is  complete,  41  §38;  191  §  8;  192  §  7 ;  193  §8,  9, 

10;   195  §14,15,16;    196  §17;  197  §19;  198  §20;   2U0  §22, 

23.;  201  §  26,  27,  28;  488  §  2,  8. 
want  of  assent  bv  assured,  188  §  36. 
when  contract  inincomplete,  189  §  1 ;  190  §2;  191  §4;  192  §  6;  104 

§12,  13;  199§21;  200§24;  481  §  1. 
CONTRACT, 

(See  Policy.) 
CONTRIBUTION. 

right  to,  205  §13. 

amount  recoverable  where  policies  have  pro  rata  clause,  202  §  2 ; 

200  §  15. 

where  other  insurance,  202  §4;  204  §10,  11; 

422  §  25. 
where  one  policy  is  on  the  whole  and  another 
on  parts,  202  §5;  203  §7;  205  §12,   14; 
207  §17. 


INTEX. 


763 


'continued. 


§G; 


1 ;  466  §  26. 

;  103  §  8,  9, 
>;  2U0  §23, 


102  §6;  104 


se,  202  §  2  ; 

)4  §10,  11; 

nnd  another 
15  §12,  14; 


i 
fe 


CON  TRIBUTION— «»n«inM«<?. 

amount  recoverable  wbere  one  policy  is  void,  203  §  0 ;  430  §  58. 

for  expenses  of  protecting  against  fire,  322  §  1. 

in  case  of  double  insurance,  202  §  1 ;  203  §  8 ;  207  §  16 :  349 
868  §  10. 

where  one  policy  has  pro  rata  clause  and  others  not,  202  §  2 :  478  §  10. 
COUNTERSIGNING  BY  AGENT,  207  §  1,  3 ;  488  §  3. 
COURSE  OF  TRADE, 

(See  Usage.) 
COVENANTS  TO  INSURE, 

assignee  of  lessee  liable  on,  209  §  7. 

lessor  may  sue  on,  209  §  7. 

breach  of,  by  tenant,  208  §  2. 

consideration  of,  209  §  9. 

damages  on,  308  §  1. 

does  not  give  lien  on  policy,  810  §  10. 

injunction  against  ejectment  for  breach  of,  208  §  1. 

in  mortgage,  396  §  6. 

need  not  be  in  writing,  210  §  8. 

re- entry  for  breach  of,  208  §4. 

run  with  the  land,  208  §  3 ;  209  §  6,  7. 

where  sub-lessee  insures,  209  §  5. 
CUSTOM, 

(See  Usage.) 
DAMAGES, 

on  goods  not  price  but  market  value,  219  §  83. 

actual  loss  with  interest  only  recoverable,  180  §  5. 

by  removal,  218  §  27  ;  672  §  3 ;  573  §  4. 

consequential,  179  §  1 ;  180  §  3,  8,  4,  5,  6. 

cost,  as  evidence  of,  212  §  8. 

cost  of  rebuilding,  not  the  rule  of,  212  §  13 ;  216  §  24. 

deduction  of  percentage,  214  §  17. 

entire  loss  recoverable  within  limit  of  insurance,  211  §  3 ;  314  §  16  ; 
216  §31;  318  §28. 

for  loss  of  machinery,  311  §  4. 

for  loss  of  cotton  mill  and  machinery,  214  §  14. 

for  imported  goodsi  with  duties  unpaid,  215  §  19. 

for  patented  reaping  machines,  216  §  24.    • 

for  successive  losses,  624  §  1,  3;  625  §  4. 

for  goods  in  trust  or  on  commission,  323  §  1 ;  328  §  2,  4;  824  §  8 ; 
825  §11;  849  §8;  852  §  22. 

for  expenses  of  protecting  property  against  fire,  322  §  1. 

for  expenses  of  collecting  assessments,  110  §  5. 

for  neglect  to  insure,  38  §  2 ;  34  §  5  ;  40  §  34. 

for  refusal  to  recognize  transfer  of  stock,  655  §  1. 

books  of  assured  as  evidence  of  202  §  89;  295  §  106;  304  §  21. 

appraisement  as  evidence  of,  293  §  90. 

risk  on  unfinished  vessel,  not  a  marine  risk,  187  §  31. 

course  of  trade  to  prove  amount,  294  §  102. 

qualification  of  witness  as  to  stock  of  goods,  295  §  104. 

when  several  policies. 

(See  Payment  <fv  Loss.) 

interest,  212  §  6 ;  213  §  9 ;  314  §  18 ;  818  §  4 ;  461  §  7 ;  537  §  34. 

mitigation  of,  279  §  12. 

on  covenants  to  insure,  209  §  6. 

on  goods  dealt  in  at  wholesale,  218  ^  29. 

on  property  abroad,  219  §  32. 


764 


INDEX. 


DAMAGES— eontinued. 

.   on  floating  policy,  805  §  1,  2. 
■     on  policy  to  mortgagor,  56  §  3 ;  211  §  3. 

to  mortgagee,  69  §  45  ;  213  §  7;  315  §  30;  321  §  4,  5,  6; 

580  §8;  740  §7. 
of  partner,  full  value,  861  §  55. 
to  assignee  of  mortgagee,  313  §  7. 
assigned  to  mortgagee,  230  §  2. 

to  yenclor,  63  §  38;  60  §  83;  71  §  51;  320  §  1;  332  §  7. 
to  vendee,  840  §  6. 

to  lessee,  211  §  1 ;  314  §  15 ;  851  §  18. 
to  tenant  by  curtesy,  350  ^  9. 
to  purchaser  of  equity  of  redemption,  213  §  5. 
covering  all  the  stock  in  pork  house,  221  §  3. 
of  re-insurance,  570  §  5,  6,  7  ;  663  §  5;  571  §  10;  572  §  11. 
to  mortgagee  not  include  subsequent  advances,  359  §  49. 
mortgagor,  full  value,  360  §  52. 
purchaser,  full  value,  650  §  63. 
on  valued  policy,  282  §  39;  656  §  1,  3,  8;  657  8  7;  695  §  1. 
report  of  committee  under  charter  not  conclusive  as  to,  216  g  33. 
sale  of  damaged  goods  at  auction,  213  §  10,  12. 
temporary  or  local  depression  in  market  value,  216  §  28 ;  217  §  36. 
under  two-thirds  or  three-fourths  clause,  304  §  11 ;  311  §  4  ;  318 

11;   434§34;656§3,3,4,  5,  6,  7;657§8;  658§9,10;659§11. 
where  there  is  double  insurance,  803  §  1,  3,  8,  4,  5  ;  303  §  7,  8,  9 ' 

304  §  10,  11 ;  349  §  6  ;  433  §  25 ;  480  §  53.  , 
•where  building  has  been  torn  down,  590  §  7. 
where  ^oods  insured  have  been  levied  on,  350  §  11. 
where  insurer  elects  to  rebuild,  219  §  80,  31. 
where  partial  repairs  are  made,  218  §  36. 
where  property  is  injured  by  fire,  313  §  11. 
where  there  is  no  legal  rule  of,  313  §  13. 

(See  Removal  ;  Two-thirds,  &c.,  Clausb.) 

DELIVERY  OF  POLICY, 

(See  Policy.) 
DEPENDENCY  OF  POLICY  AND  PREMIUM  NOTE, 

liability  for  assessments  ceases  prima  facie  with  policy,  353  §  19; 

465  8  34. 
where  policy  is  void  for  alienation,  332  §3;  ?33    §  5,  6,  8;   324 

§  13;  335  §  16;  336  §  17 ;  534  §  10; 
685  §  3. 
premium  note  not  enforceable  for  assured's 

insolvency,  275  §  18. 
assignment,  223  §  3. 
concealment,  333  §  1 ;  337  §  31. 
non-payment  of  assessments,  118  §  85. 
other  insurance,  437  §  78 ;  587  §  3. 
want  of  insurable  interest,  583  §  5. 
where  policy  is  void  ah  initio,  223  §4;  337  §  33;  228  §  25; 

8;  534  §9;  465  §  24. 
avoided  by  act  of  assured,  537  §  22. 
suspended,  534  §  7 ;  588  §  5. 
surrendered,  238  §  23,  34;  335  §  18  r  ;■.  ^^ 
where  policy  has  been  paid  in  fall,  223  §  7;  325  §  ILi;   iW 
where  assured  dies  and  administrator  pays  assessments,  H 
DESCRIPTION  OF  PROPERTY  INSURED, 
condition  as  to,  640  §  38. 
contemplated  additions,  330  §  8. 


583 


la. 

i  t4. 


INDEX. 


765 


;  931  §4,  5,  6; 


licy,  253  §  19; 


le  for  uBsured's 


DESCRIPTION  OP  PROPERTY  INSURED— a>n«in««Z. 

false  description  rejected  as  surplusage,  181  §  3;  235  §  34i 
implied  warranty  of  continued  truth  of,  281  §  10. 
as  to  occupation,  334  §  31 ;  235  §  25,  26 ;  374  §  15. 
as  of  brick,  when  of  brick  and  stone,  103  §  01 ;  335  §  37. 
iron  shutters  and  doors  need  not  be  always  shut,  339  §  8. 
latent  ambiguity,  730  §  33. 
misdescription  by  secretary,  333  §  16;  467  §  3. 
by  agent,  335  §  38. 
may  be  corrected  by  agent,  334  §  19. 
mistake  in,  87  §  4 ;  95  §  31 ;  234  §  23;  564  §  1 ;  565  §  6. 

diagram,  231  §  11. 
omission  to  mention  wooden  kitchen,  333  §  13. 
specify  particular  articles,  833  §  17. 
mention  bleach  house,  333  §  18. 
mention  cellar,  384  §  33. 
of  building  where  goods  were  kept,  339  §  1. 
of  agricultural  building  designated  as  barn,  839  §  4. 
of  house  filled  in  with  brick,  a  warranty,  230  §  5 ;. 335  §  27. 
of  mechanics'  lien,  383  §  14. 
unnecessary  particulars,  713  §  16  ;  385  §  84. 
when  misdescription  avoids  policy,  330  §  6. 

where  building  intervened  between  two  described,  330  §  7 ;  231  §  9. 
where  mill  warranted  to  be  of  first  class  of  rates,  839  §  3, 
(See  Warkantt  and  Representation,  What  Property  is  Covered  by 

Policy,  Distance  of  Other  Buildings.) 
DIAGRAM,  86  §  1 ;  881  §  11 ;  841  §  10  ;  243  §  30. 
DIRECTORS, 

authority  to  bind  company,  38  §  34. 

to  consent  to  other  insurance,  433  §  28. 
to  levy  assessments,  119  §  36 ;  187  §  73;  137  §  76. 
•  to  waive  premium  note,  483  §  13. 
DISTANCE  OP  OTHER  IJUILDINGS, 

exposures  within  ten  rods,  841  §  18. 

in  policy  on  personal  property,  338  §  6 ;  839  §  8 ;  840  §  13. 

misstatement  of,  where  made  by  agent,  344  §  22. 

omission  of  buildings,  95  §  32 ;  236  §  3 ;  337  §  4, 5 ;  838  §  6 ;  839  §  9 ; 

840  §13;  843"  §19;  343  §31. 
reference  to  diagram,  340  §  16 ;  348  §  30. 
statement  that  building  named  would  not  endanger,  337  §  8. 
what  included  by  "other  buildings,"  183  §  10;  243  §  19 ;  730  §  23. 
where  distance  is  not  known  to  applicant,  341  §  17. 
where  building  is  described  as  "  with  fifty  feet,"  841  §  15. 
where  nearest  buildings  are  stated,  339  §  10 ;  340  §  11. 
where  premises  described  as  bounded  by  space,  388  §  7. 
DIVIDENDS, 

when  losses  to  be  paid  in  coin,  245  §  6. 
how  paid,  245  §  5, 6. 

what  funds  may  be  distributed,  344  §  1 ;  345  §  3. 
what  may  be  reclaimed,  345  §  4 ;  502  §  8. 
DOUBLE  INSURANCE, 

(See  Contribution,  Other  Insurance,  Burden  of  Proof.) 
DURATION  OF  POLICY, 

(See  Policy.) 

ENCUMBRANCES,  •     .  ^^    „.„  ,  „„  „^ 

amount  o^  understated,  249  §  8 ;  250  §  11 ;  253  §  21 ;  259  §  38,  89 ; 

643  §44;  260  §48. 
bond  to  convey  not  an,  259  §  41. 


766 


nn)EX. 


ENCUMBRANCES— conftwwd 

by  judgment  or  decree,  248  §  4 ;  882  g  8;  261  §  40;  801  §  57. 

by  tax  sale,  250  §  10. 

by  alienee,  when  forbidden  to  applicant,  260  §  44. 

mortgage  not  fully  executed,  261  §  47. 

bond  as  piirt  of  purchase  money  not  an,  261  $  48. 

lien  of  vendor,  638  §  33 ;  203  §  56. 

false  denial  of,  248  g  5  ;  240  §  0 ;  254  §  26,  27 ;  258  §  30 ;  256  §  30  ; 

266  §2;  271  §3;  564  §  4. 
what  to  be  stated  in  proof  of  loss,  262  §  51. 
intervening  between  applicaton  and  policy,  25)  §  16, 17. 
lien  for  assessments  or  prior  policy,  252  §  10. 

(And  see  Liens.) 
verl)al  notice,  where  written,  required,  262  §  52. 
mortgage  of  personalty,  251  §  15. 
mortgage  to  pay  subsisting  mortgage,  82  §  08. 
omission  to  disclose  mortgage,  248  §  3;  252  §  20,  21 ',  253  §  23,  24  ; 

258  ^  35,  87. 
what  endorsement  is  notice  of,  262  §  53. 

omission  to  disclose  mortgage  on  part,  250  §  13;  254  §  27;  207  §  2. 
omission  of  mortgagee  to  disclose  other  mortgages,  248  §  2 ;  240  §  7 ; 

254  §25;  641  ML 
omission  of  lessee  to  disclose,  250  §  12. 

holder  of  mechanic's  lien  to  disclose,  255  §  29. 
husband's  curtesy,  651  §  66. 
tax  deed,  053  §  73. 
pending  litigation,  175  §  18. 
Hiibscquent  mortgage  without  notice,  255  §  28 ;  259  §  40. 

encumbrances,  237  $;  33 ;  258  §  34. 
unrecorded  mortgage,  253  §  18 ;  250  s5  81. 
where  inquiry  is  not  fully  answered,  641  §  41 ;  653  §  72. 

charter  prohibits  insurance  of  encumbered  property,  034  §  17. 
mortgage  paid  but  not  discharged  of  record,  256  §  30 ;  200 

§42. 
agent  was  notified  of,  248  §  0;  250  §  14 ;  253  g  22;  254  §  25; 
357  ^  32  ;  258  g  35  ;  200  §  45 ;  201  §  46, 49 ;  203  §  52,  53. 
(See  Estoppel,  Waiver,  Title.) 
ENDORSEMENT,  92  ^<  23 ;  194  §  11 ;  204  §  1, 2 ;  205  §  8, 4,  5,  0,  7  ;  733  §  20 ; 
188  f.  30;  202  §  53;  275  §  20  ;  617  §  22. 
(See  Other  Insurance,  Renewal.) 
ENFORCEMENT  OF  CONTRACT  FOR  POLICY,  200  §  1, 2,  3 ;  459  §  3  ; 

500  §  53. 
ENTIRETY  AND  DIVISIBILITY, 

where  joint  owner  alienates,  58  §  11 ;  60  §  16;  61  §  21;  65  §  33; 

70  g  48,  49. 
where  part  of  property  is  alienated,  56  §  4  ;  60  §  18 ;  64  §  30 ;  270 

§17. 
where  part  is  conveyed  by  deed  of  trust,  267  §  3. 

is  mortgaged,  250  §  13;  254  §  27 ;  207  §  2 ;  268  g  0,  9. 
is  insured  again  without  notice,  207  §  4  ;  208  §  7 ;  428 

§43;  018  §3;  270  §  18. 
is  put  to .  prohibited  use,  267  §  1 ;  268  §  5 ;  673  §  27 ; 

078  §  41. 
was  not  owned  by  assured,  208  §  8 ;  269  §  10. 
.of  contract  to  pay  salary,  348  g  8. 
other  insurance  on,  454  §  181 ;  708  §  40. 
encumbrances  in,  508  §  90. 

where  policy  is  on  realty  and  personalty,  288  §6;  250  §  13 ;  269 
§  10, 11, 12, 13, 14;  270  §  15, 10, 17, 18. 


INDEX. 


767 


Jl  §  67. 


30;  256  §30; 

,7. 


233  §  33,  34  ; 


27;  307  §3. 
!§3;  249§7; 


§39. 


10. 


3. 

ertv,  034  §  17. 
350  §  30  ;  300 

23 ;  254  §  25 ; 
;  803  §  53,  53. 

J,7;733§3e; 


J,  3  ;  459  §  3  ; 

131;  05  §32; 
64  §80;  870 

;  368  §  0,  9. 

308  §  7  ;  428 

\5;  078  §37; 
10. 

250  §  13 ;  269 


EQXJITABLE  RELIEF,  190  §  3 ;  191  §  8 ;  208  §  1, 2 ;  264 1 1 ;  813  §  4 ;  815 

§  1 ;  316  §  5  ;  869  §  13, 18 ;  500  §  53  ;  503  §  61 ;  607  §  0. 
(See  Enfohcement  of  Contract  fob  Policy,  Bbfobm  of  Policy.) 
ESCROW,  57  §  0. 
ESTOPPEL, 

by  omission  of  agent,  87  §  21 ;  273  §  7. 
of  grantor  to  set  up  fraudulent  conveyance,  59  §  13. 
of  mortgagor  to  deny  his  title,  271  §  2. 

to  contradict  application,  94  §  29 ;  97  §  37  ;  271  §  8 ;  281  §  28. 
affidavit  of  loss,  517  §  25. 
value  as  stated  in  policy,  273  §  9. 
unanswered  (]|ueations,  104  §  63. 
by  investigatmg  loss,  104  §  63. 
only  during  currency  of  policy,  274  §  18. 
to  authorize  officer  to  draw  Iraft,  296  §  111,  113. 
none  by  act  of  agent  when  no  injury  done,  560  §  1  '. 
operates  when  a  breach  is  eo  inatanti  with  issue  of  ptVcy,  260  §  45  ; 

261  §  46. 
to  deny  brolcer's  authority,  480  §  2. 

insurable  interest,  533  §  5 ;  575  §  5 ;  576  §  7. 
classification  of  hazards  in  policy,  280  §  18 ;  469  §  14. 
insurance  to  administrator,  225  §  14. 
legal  existence  of  company,  111  §  9;  401  §  24 ;  400  §  14  ; 

402  §  25  ;  609  §  15. 
premium  recited  in  policy,  271  §  1. 

recital  in  policy  of  other  insurance,  202  §  4 ;  204  §  10,  11 ; 
433  §  35. 
to  show  that  agent  prepared  application,  242  §  19. 
to  set  up  encumbrances,  87  §  21 ;  243  §  22 ;  50  §  70. 
invalidity  of  charter,  171  §  4. 
breach  of  warranty,  223  §  4. 
•forfeiture,  227  §20. 

mistake  of  agent  in  application,  243  §  23 ;  50  §  70,  78. 
illegal  contract.  330  §  5;  271  §  4;  273  §.10. 
limitation  clause,  885  §  7. 
other  insurance,  444.  §  89. 

increase.of  risk  after  renewal,  472  §  87 ;  575  §  4,  6. 
non-payment  of  assessments,  588  §  3.       * 
premium,  488  §  7. 
receipt  of  notice  of  loss,  378  §  6. 
statement  by  officers  does  not,  373  §  8, 10. 
EVIDENCE,  „    „ 

admissions  of  officers,  389  §  69, 73;  290  §  75  ;  396  §  109 ;  294  §  99 ; 

509  §  96. 
affidavit  of  loss  as,  277  §  3;  279  §  14 ;  280  §17;  287  §  58;  288  §  02; 

289  §  09. 
ambiguity  and  mistake,  474  §  87. 
answers  to  interrogatories  in  another  suit,  284  §  42. 
books  of  account  as,  145  §  0. 

by  partner  that  another  partner  has  no  interest,  285  §  48. 
competent  witnesses,  281  §  26 ;  283  §  88 ;  286  §  56 ;  580  §  8. 
copy  of  policy  when,  282  §  31. 
declaration  in  one's  favor  by  book  entries,  291  §  82. 

against  interest,  by  beneficiai7  of  suit,  293  §  92. 
by  one  not  a  party,  292  §  86. 
examination  under  oath,  280  §  17. 
ex  parte  affidavits,  515  §  10. 
incompetent,  cured  by  subsequent  competency,  294  §  101. 


768 


INDEX. 


/ 


EVIDENCE— «>ft«i»««<?. 

admission  of  validity,  by  ordering  cancellation,  275  8  16. 

in  mitigation,  279  §  t2. 

in  Buit  to  compel  issue  of  policy,  SOS  §  S. 

correct  policy,  S65  §  6. 
mutilated  papers,  280  $  10. 

of  acta  prior  to  date  of  policy,  280  §  21 ;  289  $  68. 
additional  insurance,  194  §  11. 
admissions,  87  §  19, 21 ;  197  $  18 ;  288  §  89. 
agency,  flS  §  10 ;  810  §  22. 
amount  of  loss  or  damages,  proof  by  books,  292  $  89 ;  295  § 

106. 
authority  to  consent  to  other  insurance,  420  §  46. 
by  prior  appraisement,  208  J  90. 
by  course  of  trade,  294  %  102. 
by  expert,  205  $  104. 

burning  by  design,  148  §  1  to  11 ;  294  §  100  ;  292  §  86. 
burning  straw  three  weeks  before  loss,  286  §  51. 
by-1awB  attached  to  policy,  286  §  54. 
company's  organization  and  capacity,  284  §  43 ;  288  §  67. 
compliance  with  statutory  regulations,  284  §  41. 
consent  to  alienation,  67  §  41. 

assignment,  67  §  41 ;  180  §  10. 
conversations,  880  §  58. 
delivery  of  deed,  67  §  6. 

policy,  107  §  18. 
experts  as  to  increase  of  risk,  277  §  4 ;  288  §  33  ;  286  §  55;  291 
§  80  ;  202  §  87,  88;  2Pi  §  102;  295  §  103;  296 
§  108. 110. 
nature  of  risk,  287  §  61. 
materiality  of  facts,  282  §  84. 
amount  of  loss,  294  §  102 ;  295  g  104. 
1  handwriting,  277  §  7. 

not  admissible,  when  test  is  agreed  on,  690  §  78. 
whether  consent  would  have  been  given,  292  §  85. 
course  of  trade,  294  §  102. 
•  usage,  201  §  70. 
right  to  employ  in  rebuilding,  560  §  15. 
what  are  brick  houses,  281  §  27. 
opinions,  281  §  25 ;  282  §  83 ;  287  §  50 ;  292  §  85. 
false  swearing,  299  et  aeq. 

false  representations  to  other  companies,  200  §  78. 
fraud,  854  §  29. 

pood  character  to  rebut  charge  of  fraud,  277  §  2. 
insurance  on  indictment  for  arson,  276  §  1. 
interest  insured,  373  §  27;  417  §  9;  289  §  70. 
loss  by  removal,  281  §  24. 
of  policy,  284  §  45. 

nearest  magistrate,  162  §  2 ;  164  §  10, 12 ;  167  §  20,  21. 
notice  of  assessments,  285  §  47. 

loss,  288,  §  65,  66. 
notice  to,  or  knowledge  of,  agent.    (See  Agemt.) 
policy  in  action  against  agent  for  slander,  279  §  15. 
president  and  secretary,  282  §  30 ;  286  $  56. 
preliminary  proofs,  288  $  89 :  288  §  62.  68,  64 ;  629  §  78 ;  631 

§82. 
premium  note  in  action  on  policy,  686  §  17. 
property  insured,  417  §  9 ;  666  §  2. 


INDEX. 


769 


MS 


EVIDENCE— <!/)ii^tn««l. 

of  property  intended  to  be  insured,  781  §  24. 

records  of  insolvency  to  sliow  situiition  of  assured,  278  §  8. 

representations  of  agent  beyond  his  authority,  878  §  11. 

secondary  evidence,  292  §  89. 

secretary's  authority.  89  §  12 ;  284  g  44. 

title,  287  §  57 ;  682  g  8. 

value  of  property  insured,  277  §  7 ;  279  §  18 ;  283  §  85  ;  384  §  40; 

280  §  52  ;  287  §  60. 
value  to  support  judgment,  277  §  6. 
waiver,  290  §  77. 
on  indictment  for  arson,  200  S  76. 
presumptions,  194  g  18 ;  516  §  28. 

(See  Burden  of  Proof.) 
premium  large,  evidence  of  unusual  risk,  298  §  96. 
question  not  answerable,  overruled.  293  §  05. 
rates  of  hazards,  instructions  and  by-laws  as  to,  283  g  87. 
recital  of  policy  in  premium  note.  280  §  23. 
premium  nc^c  in  policy,  586  §  17. 
removal  pending  electioi  to  replace,  555  §  3. 
to  correct  clerical  error,  ai' 5  §  4H. 

rebut  charge  of  corice<'iment  or  misrepresentation,  96  §  36. 
evidence  of  fabrication  of  papers,  277  §  5. 
wrongly  admitted,  287  §  60. 
reduce  value  in  valued  policy,  283  §  29. 
show  that  others  in  same  business  had  less  stock,  277  §  7. 
regular  agent  would  not  have  insured,  278  §  9. 
when  policy  tiikes  effect,  286  g  53 ;  290  §  73. 
explain  policy,  289  §  71 ;  290  §  74. 
under  allegation  of  removal,  285  §  50. 
(See  Burden  of  Proof,  Parol  Evidence,  Usage.) 
EXAMINATION  UNDER  OATH,  297  §  1,8,  3;  208  §  4,  5,6;  321  g  15. 
EXECUTION,  % 

against  particular  classes,  299  §  2. 
contract  to  stay,  298  §  1. 
levy  of,  not  alienation,  60  §  19 ;  06  g  36. 

does  not  divest  insurable  interest,  350  §  11. 
before  takipg  insurance.  69  §  43. 
EXECUTOR  AND  ADMINISTRATOR, 

may  pay  assessments  against  decedent,  235,  §  14. 
not  required  to  keep  up  insurance,  34  §  6. 
policy  of  decedent  passed  to,  138  §  1 ;  365  §  3. 
where  policy  is  renewed  by,  367  §  6 ;  746  §  38. 
where  appointed  after  bill  filed,  480  §  1. 
EXPERTS, 

(See  Evidence.) 

EXPLOSION, 

(See  Risk.) 
FACTORS^  89  §  31 ;  835  §  11 ;  849  §  8. 
FALSE  SWEARING, 

as  to  value  by  inadvertence,  303  §  14. 

burden  of  proof  as  to,  800  §  7  r  303  §  18. 

for  jury  to  decide,  803  §  30 ;  304  §  33,  35. 

in  proof  of  loss  as  to  what  is  not  inquired  about,  302  §  14,  16. 

incorrect,  but  not  wilfully  so,  303  §  15;  303  §  18,  30. 

meaning  of  term,  299  §  1 ;  304  §  81. 

record  of  suit  between  agent  and  insurer,  800  §  6. 

statement  of  loss  disproved,  899  §  3;  802  §  13. 
49 


770 


INDEX. 


FALSE  BYTEABlSQ—eontinved. 

to  create  forfeiture,  803  §  11 :  '808  §  10. 

▼erdict  for  less  than  Bum  ^ily  sworn  to,  800  §  4,  7 ;  801  §  8,  0,  10 ; 

808,  §  17 ;  804  §  24. 
where  agent  swears  to  loss  as  his,  800  $  S. 
FLOATING  POLICY,  805  §  1,  3. 

(See  Contribution.) 
FOREIGN  INSURANCE  COMPANIES, 
competent  to  contract,  808  §  12. 
conditions  of,  as  to  venue,  811  {  20 ;  697  §  2. 
failure  to  file  statement  and  take  out  license,  142  §  2 ;  805  g  1 ;  806  §  S ; 
807  §  7 ;  808  §  10,  17;  800  §  18,  20;  810  §  28  ;  811  $  27,  28: 
488  §  4  ;  812  §  82. 
sufficiency  of  statement,  808  §  14, 15 ;  810  §  24. 
laws  imposins;  burdens  on  agencies  o(^  800  §  8,  4 ;  800  §  21 ;  626 

§4,6;  627  §18;  628  $14,16. 
in  Missouri,  80S  $  1. 
Illinois,  300  $8;  800  §  21. 
Ohio,  806  §  4. 

Pennsylvania,  806  $  5 ;  809  §  10 ;  810  §  25. 
Indiana,  311  §  28. 
Wisconsin,  800  §  21 :  811  §  80. 
New  Hampshire,  811  §  26. 
lien  of,  882  §  7. 
may  be  garnished,  807  §  6. 
notice  to  agents  of,  44  §  46. 
place  of  contract,  487  and  488. 
right  to  use  Federal  courts,  812  §  88,  84 ;  818  $  85,  86,  87,  39 ; 

814  §  41,  44. 
service,  807  §  8. 

provision  forfeiting  entire  note,  808  §  11. 
in  regard  to  stay  of  execution,  297  §  1. 
,  revocation  of  agency  of,  807  §  0. 

service  on  agents  of,  800  §  4,  5 ;  814  §  88 ;  815  §  43. 

statutes  of  Massachusetts  as  to,  807  §  6,  10 ;  308  §  18,  14 ;  800  §  20 ; 

810  §  22,  24 ;  812  §  81. 
usage  of,  662  §  2 ;  668  §  4. 
what  law  governs  remedy,  800  §  10. 

what  averment  necessary  to  remove  to  Federal  courts,  815  §  44. 
(See  Taxation.) 
FORFEITURE,  refusal  to  submit  to  examination  under  oath  required,  not  a, 

208  §  5. 
FRAUD, 

a  question  for  jury,  308  §  20. 
averment  of,  816  §  7. 
concealment  of  interest,  317  §  12,  13. 
contract  by  insolvent  co.,  816  §  0 ;  347  §  3. 
defeating  recovery,  804  §  21. 
false  numbering  of  policies,  815  §  3. 
false  statements  as  to  solvency,  816  §  0 ;  317  §  10. 
in  issue  of  policy,  317  §  11. 
threats  inducing  settlemenf,  not,  818  §  15. 
fraudulent  alienation,  59  §  12 ;  67  §  40 ;  604  §  9;  648  §  44. 
over-valuation,  603  §  5. 
surrender  of  stock  note,  605  §  1. 

representations  of  agents,  815  §  2;  816  §  6,  8 ;  818  §  15. 
in  obtaining  stock  subscriptions,  607  §  8. 
misapplication  of  premium  note,  589  §  82 ;  604  §  9. 


INDEX. 


771 


7;  801  §  8,  0,  10; 


4 ;  800  §  21  ;  626 


I  $  85,  36,  37,39; 


§18,14;  809  §20; 


FRAUD— <sonWn««l. 

mistake  of  agent  unknown  to  co.,  81S  $  4. 

policy  ordered  to  be  delivered  up  for,  815  $  1. 

rescission  of  contracts  for,  816  $  6 ;  587  $  21. 

(See  BvRNiNO  by  Design,  Neoliornoe,  Falbb  Swearing,  Value.) 
GARNISHMENT  OR  TRUSTEE  PROCESS, 

after  pavment  in  good  faith,  820  §  10. 

answer  in,  cannot  be  contradicted,  831  §  14. 

by  landlord  for  rents  due  from  tenant,  867  §  0. 

foreign  companies  liable  to,  819  $  0. 

for  loss  flxea  b^  award,  818  §  1. 

ascertamed  before  answer,  818  $  2. 

for  una^usted  claim  of  loss,  320  §  8,  9,  11 ;  821  §  12.  18. 

interest  chargeable  to  garnishee,  218  |  9 ;  214  §  18 ;  810  §  4. 

no  defense  to  action  on  policy,  810  §  4. 

set-oflf  by  garnishee,  818  §  8 ;  604  §  7. 

saves  limitation,  894  §  87. 

where  policy  has  been  assigned,  819  §  5,  7 :  603  §  64. 
GENERAL  AVERAGE,  322  §  1. 
GOODS  IN  TRUST  OR  ON  COMMISSION, 

assured  may  pay  himself  before  customers,  324  §  9. 

goods  in  pawn,  324  §  7. 

insurance  covers  only  interest  of  assured,  822  §  1. 

covers  whole  value  of  property,  231  §  8 ;  323  ?  2 ;  834  §  8 : 
825  §  11 ;  826  §  14;  840  §  8;  352  §  22;  827  §  17. 

may  be  insured  without  order  of  owner,  825  §  12;  867  §  8;  337  §  17. 

must  be  insured  as  such,  823  §  8 ;  824  §  6,  7. 

♦'  sold,  but  not  removed,"  327  §  17. 

who  may  sue,  827  §  17. 

what  property  treated  as,  825  §  5;  824  §  10;  826  §  13,  15. 

where  held  by  partners,  828  §  4. 
GUNPOWDER, 

agent  has  knowledge,  820  §  7. 

deposited  beyond  policy  limit,  828  §  8 ;  829  §  6. 

explosion  by,  590  §  6,  6;  691  §  11. 

storing  and  keeping  of,  828  §  4,  5 ;  678  §  41 ;  507  §  37. 

when  not  covered  by  insurance,  327  §  1. 

where  building  is  blown  up,  828  §  2 ;  697  §  86. 
HABIT, 

(See  Ubaob.) 
HEIRS,  362  §  62 ;  370  §  18 ;  880  §  59 ;  379  §  57;  381  §  11. 

have  no  interest  in  policy,  128  §  1 ;  866  §  3. 
ILLEGALITY  OP  CONTRACT, 

adding  premium  to  lawful  interest,  830  §  4. 

agreement  for  illegal  insurance,  830  §  2. 

cash  premium  in  mutual  companies.  331  §  7,  8,  0;  483  §  11. 

estoppel  to  set  up.  171  §  4  ;  880  §  S. 

gambling  policy,  330  §  8 ;  332  §  10,  11. 

insurance  before  license,  637  §  25. 

illegal  use  of  building,  672  §  23;  688  §  67. 

of  re-insurance,  569  §  1, 2.      ' 

Stat.  6  Geo.  1  c.  18  §  12,  830  §  1. 

unauthorized  guaranty  fund,  330  §  6. 

(See  FcHEioN  Insurance  Companies,  Mutual  Comfanies.) 
INCREASE  OP  RISE, 

after  policy  but  before  premium  paid,  343  §  40. 

burden  of  showing,  384  §  7. 

by  lessees,  843  §  38. 


r 


772 


INDEX. 


INCREASE  OF  mSK— continued. 

by  occupancy  changed,  205  §  103 ;  842  §  35 ;  345  §  47. 
evidence  of,  277  §  4 ;  282  §  32 ;  286  §  55. 

invalidates  policy  when,  150  §  2 ;  152  §  11 ;  832  §  3 ;  333  §  4, 5 ;  834 
§  6,  9;  336  §  14;  337  §  15,  16,  17 ;  668  §  10;  338  §  19,  80;  340 
§  24,  25;  342  §  31,  32;  493  §  19;  668  §  10. 
loss  must  be  caused  by,  844  §  43;  346  §  40. 
not  controlled  by  claases  of  hazards,  346  §  51. 
notice  of,  834  §  7;  836  §  14;  338  §  19;  339  §  21;  841  §  29;  342 

§33,34;  156  §3;  472  §  27. 
repairs,  345  §47;  346  §  49. 
risk  diminished  on  the  whole,  343  §  86,  87,  89. 
test  of,  295  §  108. 

throwing  two  stores  into  one,  344  §  41. 
what  is  not  invalidate  policy,  340  §  26 ;  341  §  28. 
when  erection  of  buildings,  344  §  44 ;  345  §  48. 
when  it  does  not,  332  §  2 ;  334  §  8 ;  835  §  10, 11 ;  386  §  18 ;  838  §  18 

389  §  22;  341  §  27 ;  342  §  30 ;  295  §  103. 
when  known,  waived  by  not  canceling,  274  §  14." 
where  no  stipulation  in  policy,  335  §  lO ;  681  §  47. 
(See  Que8tA>ks  for  Court  ajsd  Jury,  Alteration.) 
INSANITY,  529  §  74. 
JNSOLVENCY, 

assignee  of  insolvent  co,  may  reclaim  dividends,  245  §  4. 
contract  of  insolvent  co.  to  insure,  348  §  5. 
distribution  of  assets,  347  §  2 ;  348  §  7 ;  624  §  2. 
insurable  interest  of  insolvent,  351  §  18 ;  354  §  29. 
liability  of  stockholder,  847  §  4. 
lien  of  creditors  of  insolvent  co.  847  §  1;  397  §  1. 
no  defense  to  action  on  premium  note,  348  §  6  ;  584  §  8 ;  588  §  28. 
set-off  of  creditor,  347  §  8. 
suspends  si<laries,  348  §  8. 
INSTRUCTIONS, 

(See  Agent,  Pleading  and  Practice.) 
INSURABLE  INTEREST, 

must  exist  at  time  of  insurance  and  of  loss,  349  §  1 ;  358  §  43. 
none  in  possibility  of  a  ri^ht,  350  §  10. 
not  destroyed  by  levy,  350  §  11. 
, of  agent  or  consignee,  352  §  22. 
assignee,  856  §  38,  39. 

executor  and  creditor,  356  §  3'J,  37 ;  636  §  22. 
goods  not  specific,  362  §  59,  61 ;  650  ^  61. 
grantor  of  deed  given  in  Sfcuritv,  408  §  11. 
husband  in  wife's  property,  849  §  8,  9;  351  §  15;  354  §  29;  358 

§45. 
in  another's  house  on  one's  land,  801  §  53. 
in  one's  own  house  on  another's  land,  273  §  11. 
in  policy  assigned  for  creditors,  378  §  52. 
insolvent,  351  §  18;  354  §  29, 
insurer,  509  §  3.  , 

judgment  is  not  insurable  interest,  361  §  57. 
lessee,  351  §13;  358  §  47. 
lessor,  356  §  35 ;  357  §  42. 

mortgf»gee,  851  §  12,  17 ;  353  §  25,  26.  27;  357  §  41;  358  §  44. 
mortgagor,  251  §  15 ;  349  §  5 ;  352  §  21 ;  360  §  52. 
not  destroyed  by  sale  conditional  as  Rocurity,  360  §  51,  52. 
partner,  351  §  10;  361  §  55  ;  362  §  63. 
policy  in  name  of  an  agent,  363  §  65. 


INDEX. 


773 


§  21;  841  §  29;  343 


;  336  §13;  838§18 


;  534  §  8;  588  §28. 


il  §  15;  354  §29;  358 


INSURABLE  INTEREST— eontinued. 

of  purchaser  at  execution  sale,  68  §  42 ;  852  §  24. 
railroad  co.  in  growing  timber,  353  §  23. 
sheriff,  355  §  34. 
stockholder,  363  §  64. 
trespasser  on  land  of  State,  851  §  19. 
trustee,  359  §  48. 

vendee  under  agreement  to  sell,  361  §  56. 
vendor  under  agreement  to  sell,  362  §  60. 
policy  to  secure  payee  of  note,  350  §  7. 
rents  and  profits,  180  §  3;  351  §  14. 

under  executory  contract,  849  §  2,  4,  6;  354  §  28;  859  §  49. 
mechanic's  lien,  352  §  20 ;  355  >§  32,  33 ;  358  §  46. 
•  (See  Goods  in  Trust  ou  mi  CbMMissioK.) 

INSURANCE  COMPANIES,  ^ 

do  not  forfeit  charter  by  refusing  hazardous  risks,  363  §  1. 
in  Illinois  cannot  plead  usury,  364  §  5. 
may  borrow  money,  865  §  8. 

purchase  bank  stock,  863  §  3.     . 
bills  of  exchange,  363  §  4. 
transfer  notes,  863  §  2. 
notice  to,  864  §  7. 

(See  FoBBiGN  Insurance  Companies,  Taxation.) 
INTEREST, 

(See  Dauaoes.) 
INTEREST  IN  POLICY, 

after  death  of  assured,  34  §  6 ;  128  §  1 ;  225  §  14 ;  366  §  8 ;  369  §  14 ; 

370  §  19 ;  873  §  30;  875  §  35 ;  377  §  42,  43,  45. 
construction  as  to  interest  insured,  325  §  12;  375  §  36. 
for  whom  it  may  concern,  378  §  27;  377  §  44;  378  §  49. 
in  policy  of  re-insurance,  872  §  24 ;  570  §  4,  8. 
loss  payable  to  one  is  an  admission  of,  509  §  96. 
of  bailor  in  policy  to  baUee,  323  §  5 ;  366  §  1 ;  367  §  8 ;  371  §  20 ;  372 
§26;  376  §41. 
creditor  in  policy  assigned  to  himself,  67  §  40. 
debtor  in  creditor's  policy  on  pledge,  621  §  15. 
for  "  benefit  of  others,"  879  §  58. 
grantee  in  policy  to  grantor,  370  §  17. 
grantor  in  policy  "assigned  to  vendee,  879  §  54. 
joint  and  separate  creditors  in  policy  to  firm,  866  ^  4. 
lessee  in  policy  to  lessor,  366  §  1 ;  367  §  5. 
lessor  in  policy  to  sub-lessee.  209  §  5 ;  874  §  31. 
lien  credftor  in  policy  to  debtor,  370  §  16 ;  379  §  56. 
mortgagee  in  policy  to  mortgagor,  868  §  9 ;  369  §  12, 13 ;  376  §  39. 

himself,  234  §20;  378  §  49. 
mortgagor  in  policy  to  mortgagee,  872  §  23 ;  378  §  28;  379  §  54, 

65;  396  §8. 
to  purchaser  of  equity  of  redemption,  373  §  28. 
assigned  to  mortgagee,  372  §  25. 
mortgagor  in  judgment  for  benefit  of  mortgagee,  368  §  11. 
one  insurer  in  policy  to  another,  368  §  10;  377  §  46. 
policy  transferred  for  creditore,  878  §  52. 
principal  in  policy  to  agent,  370  §  15 ;  363  §  65. 
sub-lessees  in  policy  to  first  lessor,  371  §  21. 
vendee  in  policy  to  vendor,  71  §  51 ;  220  §  1 ;  374  §  32,  34. 
on  goods  in  trust  or  on  commission,  328  §  5;  325  §  12;  852  §  22; 

289  §  8. 
on  interest  of  one  partner,  877  §  47. 


774 


INDEX. 


INTEREST  IN  POLICY— continued. 
to  joint  heirs,  370  §  18. 
where  collected  by  receiver,  878  §  29. 

trustee  to  pay  a  debt,  878  §  50. 
money  collected  for  property  not  insured,  874  §  88. 
deposited  as  security,  876  §  40. 
assigned  and  re-assi^ed,  306  §  4. 
covenant  to  insure,  210  §  10. 

(See    SUBHOGATION.) 

INTERROGATORIES, 

authority  of  agent  to  construe,  40  §  86 ;  51  §  78. 
waiver  of  answer  to,  98  §  27 ;  702  §  9;  104  §  62,  65;  105  §  69. 
JUDGMENT, 

is  it  a  lien.  • 

(See  Lien,  Incumbrance.) 
JURISDICTION, 

(See  Insurance  Cos.,  Venue.) 
JURY, 

(See  Questions  for  Court  and  Jury.) 
LESSOR  AND  LESSEE, 

(See  Rbsponsibilitt  of  Assured  for  Acts  of  Others.) 
LEVY  OF  EXECUTION, 

(See  Execution.) 
LEX  LOCI, 

(See  Place  of  Making  Contract.) 
LIEN  OF  CREDITORS, 

on  surplus  funds  of  ins.  co.  244  §  2. 
of  firm  and  of  separate  partners,  360  §  4. 
LIEN  OF  INSURER  FOR  ASSESSMENTS, 
avoided  by  sale  or  mortgage,  61  §  20. 
avoided  by  alienation,  381  §  6. 

descent,  881  §  5. 
for  quotas  in  Virginia,  880  §  1,  2 ;  852  §  8,  4. 
in  foreign  countries,  882  §  7. 

valid  and  should  be  paid  by  administrator,  225  §  18. 
LIENS 

'  what  liens  are  encumbrances,  261  §  49;  268 '§  66;  861  §67;  883 
§  8 ;  638  §  82. 
LIEN  OF  MECHANIC, 

(See  Mechanic's  Lien.) 
LIEN  ON  INSURANCE  MONEY, 

(See  Interest  in  Policy.) 
LIGHTNING,  882  §  1 ;  883  §  2,  8 ;  668  §  6. 
LIMITATION  CLAUSE, 

saved  by  garnishment,  894  §  87. 

applies  where  claim  is  wholly  rejected,  886  §  9. 

commences  to  run,  when,  887  §  18;  889  §  18;  301  §  24,  2.6;  893 

§86;  805  §41. 
conclusive  answer  to  bill  in  e(juitj,  883  §  1. 
condition  subsequent  and  subject  of  plea,  888  §  2. 
construed  strictly,  388  §  16  ;  801  §  5{6. 
does  not  apply  as  to  amount  allowed,  887  §  11. 
inoperative,  390  §  20;  398  g  82 ;  609  §  8. 
suspended,  pending  on  it  in  equity  to  correct  policy,  801  §  24. 

during  war,  894  §  30,  40. 
valid  and  binding,  152  §   10;  886  §  10;  387  §  14;  888  §  15 ;  880 
§  18 ;  800  §  10,  21,  22 ;  891  §  28,  25 ;  892  §  28,  20,  80 ;  808  §  b6 ; 
894  §  88. 


IITDEX. 


775 


S,  65;  105  §69. 


i;  891  §  24,  2.6;  893 


jolicy,  891  §  24. 


LIMITATION  CLA.'USE— continued. 

void,  885  §  5  ;  886  §  8 ;  699  §  8. 

waiver  of,  388  §  2;  384  §  8,  4;  385  §  5,  7;  386  §  8  ;  387  §  12,  18; 

388  §  15, 16,  17 ;  390  §  21 ;  393  §  34. 
must  be  plead,  390  §  19. 
MANDAMUS,  865  §  12. 

(See  Insurance  Companies,  Foreign  Insurance  Companies.) 
MATERIALITY, 

teat  of,  262  §  50 ;  631  §  7. 

(See  Questions  for  Court  and  Jurt.) 
MECHANIC'S  LIEN,  2B3  §  14 ;  256  §  29;  352  §  20 ;  354  §  30;  355  §  31,  82, 

33 ;  641  §  40. 
MISDESCRIPTION, 

(See  Description  op  Property  Insured.) 
MISTAKE,  298  §  4 ;  302  §  13;  318  §  15. 

(See  Aqent,  Application,  Concealment,  Description  of  Propebtv 
Insured,  Other  Insurance,  Reform  of  Policy.) 
MOBS, 

(See  Risk.) 
MORTGAGOR  AND  MORTGAGEE, 

undisclosed  agreement  between,  175  §  17. 

when  insurance  a  charge  on  mortgaged  premises,  895  §  1,  2 ;  896 

§  8,  4,  5,  6,  7. 
mortgagee  need  not  apply  money  to  debt  until  matured,  396  §  8. 
(See  Alienation,  Assignment,  Encumbxiance,  Insurable  Interest, 
Interest  in  Policy,  Subrogation.) 
MUTUAL  COMPANIES, 

dividends  of,  399  §  12. 
cannot  do  business  on  stock  plan,  398  §  4. 
liability  of  members,  898  §  5 ;  401  §  19,  23. 
may  take  cash  premiums,  331  §  7,  8;  483  §  11. 
insure  personal  property,  397  §  2. 
negotiate  notes,  400  §  15  ;  401  §  21. 
assume  business,  399  §  11. 
members  charged  with  knowledge  of  by-laws,  400  §   16,  17 ;  401 
§  19 ;  402  §  26. 
cannot  dispute  organization  of.  Ill  §  9;  400  §  14;  401 
§  24  ;  402  §  25. 
acceptance  of  amendment  of  charter,  402 
§  28. 
membership  continues  after  loss,  225  §  15 ;  898  §  3. 

forfeiture  of  policy,  398  §  6 ;  400  §  18. 
power  in  relation  to  premium  notes,  399  §  9 ;  400  §  15,  18. 
right  to  cancel  policy  and  return  premium,  585  §  2. 
special  meetings,  399  §  10. 
subject  to  N.  Y.  insolvency  act,  897  §  1. 
surrender  of  policy,  398  §  7. 
when  members  not  bound  by  by-laws,  399  §  8, 13. 
when  membership  commences,  401  §  20. 
(See  Assessments,  Premium  Notes,  Premium  Notes  in  Advance.) 
NEGLIGENCE, 

gross  misconduct,  403  §  2. 
in  making  repairs,  403  §  5. 
loss  by,  within  policy,  403  §  1,  3,  4;  404  §  6,  7,  8,  10,  11 ;  405  §  12, 

13;  596  §32. 
construction  of  clause  requiring  care,  404  §  9. 
neglect  of  agent  to  insure,  33  §  1,  2  ;  40  §  35. 

consignee  to  insure,  34  §  5 ;  39  §  29. 
open  doors  in  August,  no  proof  of,  229  §  8. 


776 


INDEX. 


NEW  TRIAL, 
NONSUIT,     • 


(See  Pleading  and  Practice.) 
(See  Pleadino  and  Practice.) 


NON-USER,  863  §  1. 
NOTICE, 

of  alterations,  85  §  4;  334  §  7,  9;  472  §  37. 

of  assessments,  588  §  26 ;  539  §  33. 

of  assignment,  129  §  4. 

of  assignee's  interest,  68  §  42. 

of  increase  of  risk,  334  §  7  ;  336  §  14;  338  §  19. 

of  other  insurance,  415  §  2;  416  §  6;  434  §  64;  485  §  68 ;  437  §  78 ; 

489  §  81 ;  442  §  86. 
of  changes  in  amounts  of  other  insurance,  442  §  88. 
of  alteration  of  policy,  274  §  12. 
of  vacancy,  274  §  15. 
of  insolvency  of  member,  275  §  18. 
proved  by  usage,  291  §  84. 

actual,  required  of  contents  of  foreign  charter,  814  §  43. 
to  agents.    (See  Agent.) 

of  foreign  co.,  44  §  44. 
to  attorney  to  produce  books,  466  §  2. 
to  broker,  not  chargeable  on  co.,  435  §  72. 
NOTICE  OF  LOSS, 

is  not  of  the  substance  of  the  contract,  53  §  85. 

plea  of,  494  §  25. 

railroad  insured,  must  give,  414  §  35. 

to  be  given  before  action,  412  §  26. 

to  whom  to  be  given,  413  §  29 ;  414  §  86,  87  ;  415  §  41. 

waiver  of,  407  §  8,  6  ;  408  §  7,  9 ;  409  §  14  ;  410  §  17,  18 ;  411  §  20, 

22;  467  §6;  414  §84;  518  §  31. 
what  a  sufficient,  408  §  8,  10;  412  §  28 ;  414  §  36,  37 ;  415  §  40. 
what  not  sufficient,  412  §  25  ;  418  §  81. 
when  to  be  given,  407  §  3,  4,  5  ;  408  §  7,  11  ;  409  §  12,  13 ;  410  §  15, 

16;  411  §19;  412  §24,  27;  413  §33;  414  §  38,39;  415  §  41. 
who  may  give,  406  §  1  ;  411  §  21 ;  412  §  28;  418  §  30;  414  §  39. 
(See  Prelihinart  Proofs.) 
OTHER  INSURANCE, 

assent  to.  418  §  15;  421  §  22  ;  423  §  28,  30;  425  §  36,  37;  426  §  38, 
39;  429  §  44;  430  §  45;  433  §  01;  445  §  93,  94;  456  §  111; 
667  §  8. 
avoids  policy  when,  416  §  7;  420  §  19;  480  §  60;  433  §  59;  434 

§65;  488  §80;  455  §138. 
bill  to  compel  endorsement,  264  §  1. 

goods,  two  insured  stocks  of,  mixed,  451  §  116,  117;  457  §  141. 
assent  to,  covers  same  amount  though  .company  changed,  457  §  143. 
not  alldwed  beyond  agreed  value,  though  additions  made,  660  S  19. 
all  insurunces  made  by  same  agent,  452  §  122;  456  §138;  435  §72; 

454  §128  129;  457  ^  142. 
amount  smaller  than  notified,  and  name  wrong,  458  §  124. 
by  vendor  of  assured,  415  §  3. 

depositor  with  warehouseman,  416  §  4. 

mortgagee  of  insured,  416  §  5 ;   421  §  33;  431  §  54;  451  §  114, 

115. 
mortgagor  after  assignment  of  policy,  431  §    54 ;    679  §  3,  4 ; 

581,  §  12. 
loss  payable  to  mortgagee,  448  §  104. 
stranger,  436  §  75 ;  442  §  87 ;  454  §  130. 


!^S'/'' 


INDEX. 


777 


7, 


55  §68;  487  §78; 


>0;  483  §  50;  434 


OTHER  INSURANCE— <»n«n««(?. 

by  assignor  of  policy,  578  §  1;  579  §  8,  4 ;  681  §  12. 

agent  of  assured  without  hia  knowledge,  441  §  85;  450  §  112. 
interim  receipt,  485  §  71. 
conditional  assent  to,  424  §  84. 
construction  of  certain  clause,  484  §  07. 

endorsement  of,  264  §  1 ;   418  §  15 ;   422  §  24  ;   426  §  38;    427  §  42 ; 
480  §52;   432  §  56  ;   436  §74;   440§83;   442  §86;    444§80; 
450  §  113. 
errors  in  recital  of,  204  §  11 ;  423  §  27 ;  485  §  70 ;  438  §  79. 
false  statement  that  there  is,  716  §  27.  | 

includes  prior  and  subsequent,  417  §  10, 11. 
insurance  by  firm  and  other  insurance  by  partner,  455  §  182. 
is  it  prior  or  subsequent  or  simultaneous,  453  §  125 ;  452  §  118. 
knowledge  of.    424  §  82;   429  §  48;   450  §  118;   451  §  114,  115; 

452  I  118  120;  456  §136. 
must  be  taken  as  recited  in  policy,  422  §  25. 
need  not  be  shown,  317  §  14. 

no  permission  given  by  agent  outside  his  locality,  455  §  135. 
notice   of,  416  §  6;   423  §  30;    484  §  64,  66;    437  §  78;   439  §  81; 

442  §  86 ;  446  §  97, 98;  450  §  111 ;  456  §  137 ;  and  see  Agent. 
notice  of,  must  be  shown  by  assured,  415  §  2. 

custom,  291  §  84. 
after  loss,  708  §  88. 

changes  in  amounts  of,  442  §  88 ;  458  §  124. 
intended  other  insurance,  458    §  126 ;    452  §  121 ;   454 
§127. 
no  warranty  of  continuance,  480  §  53. 
of  part  of  property,  267  §  4;   268  §  7  ;  428  §  48;  447  §  lOO;   448 

§  101 ;  618  §  8. 
on  TM-^  in  divisible  policy,  454  §  131 ;  508  §  90. 
parol  notice  of,  418  §  15 ;  420  §  20  ;  421  §  23 ;  429  §  48;  430  §  52. 
secretary  cannot  testify  that  no  consent  would  have  been  given, 

292  §  85. 
stipulation  as  to,  434  §  66  ;  445  §  95 ;  449  §  106. 
renewal    of,  422  §  24;   429  §49;   430  §52;   437  §76;   454  §127; 

457  §  142. 
under  clause  limiting  amount,  427  §  41  ;  432  §  55 ;  433  §  58,  60. 
waiver  of  condition  as  to,  424  §  32;  488  §  61,  62;  487  §  78;  489 

§81;  442  §'88;  418  §  105;  587  §2;  452  §  119. 
what  is  double  insurance,  840  §  10;  415  §  1 ;  41*7  §  8,  9;  418  §  12; 
423  §29;    425  §35;   428  §48;   444  §91,92;   447  §102;   449 
§107,108;   550  §3;   450  §112;   452  §  116;   45  §  182. 
what  to  be  stated  in  proof  of  loss,  262  §  51. 
where  eflfected  by  a  broker,  485  §  72. 

when  notice  of,  should  be  given,  438  §  62 ;  435  §69;   436  §  78; 
437  S  77;  817  §  14;  450  §  113. 
not  in  Force  at  time  of  loss,  449  §  110. 

void  or  voidable,  416  §5,  7;  418^13;   422  §26;   427  §40; 
429  8  45 ;  430  §  51 ;   433  §  62 ;   440  §  82;  441  §  84, 
85 ;  442  §  86  ;   444  §  90;    445  §  96  ;   446  §  99;    448 
§103;  449  §109;  453  §  128. 
where  policy  is  taken  in  lieu  of  prior  policy,  157  §  4 ;  429  §  47. 
assured  has  assigned  prior  policy,  418  §  14,  16. 
assured  is  assignee  of  prior  policies,  419  §  17 ;  420  §  21. 
by-law  is  not  recited,  432  §  57. 
policy  is  payable  to  third  party,  423  §  31 ;  579  §  6. 
(See  CoNTBiBUTioN,  Entirety  and  Divisibility  op  Policy.) 


778 


INDEX. 


PAROL  CONTRACT, 

at  time  of  application,  91  §  20. 

between  mort^^agor  and  mortgagee,  470  g  10. 

by  a  member  of  firm  of  agents,  89  §  27. 

effect  of  demand  for  premimn,  461  §  9 ;  462  §  10. 

when  endorsement  or  other  insurance  required,  450  §  113. 

not  disproved  by  boolc  of  entries,  291  §  82. 
statute  of  frauds,  468  §  17 ;  46S  §  28 ;  466  §  25,  26. 
right  to  insure  by  ngnature  of  ofBcers  does  not  prevent,  464  §  18; 
465  §28;  466  §25. 
I  between  agents,  464  §  19. 

ingredients  of  contract,  464  §  20. 

revenue  stamp  on,  466  §  26. 

after  interim  receipt  expired,  463  §  16 ;  466  §  26. 

for  extension  of  time  to  rebuild,  656  g  6. 

insurance  valid,  461  §  7 ;  462  §  10,  11 ;  464  §  17. 

although  incomplete  policy  delivered,  461  §  8. 

policy,  462  §  12 ;  500  §  53. 

policy  to  l^  given  in  60  days  if  approved,  or  premium  returned, 

464  §  21. 
that  policy  should  be  good  to  vendee,  459  §  4. 
same  terms  as  policy,  466  §  22. 
to  add  to  property  described  in  policy,  458  §  1. 
consent  to  removal,  468  §  2. 
continue  insurance,  44  §  44 ;  460  §  6 ;  482  §  6. 
vary  the  policy  as  written,  468  §  8. 
continue  policy  to  different  parties,  745  §  27. 
under  revenue  laws,  462  §  13. 

verbal  promise  cannot  be  shown  to  vary  policy,  474  §  36  ;  345  §  46. 
what  void  as  beyond  authority,  465  §  24. 
without  premium  note,  459  §  5. 

(See  Consummation  of  Contract,  Parol  EviDEaiCE.) 
PAROL  EVIDENCE, 

as  to  title  of  assured,  373  §  29;  473  §  29 ;  637  §  38. 

property  insured,  467  §  3,  5,  6 ;    470  §  18,  20  ;   478  §  30;    733 

§26;  474  §37. 
interest  insured,  233  §  14;  467  §  4. 
future  occupation,  474  §  33, 
of  authority  to  transfer  notes,  42  §  40. 
assent  to  conveyance,  67  §  41. 

other  insurance,  428  g  30;  425  §  36;  452  §  120,  121. 
notice  to  agent.    (See  Agent.) 
representations  as  to  value,  466  §  1. 
choice  of  directors  and  their  acts,  466  §  2. 
agreement  between  mortgagor  and  mortgagee,  470  §  19. 
privilege  to  use  camphene,  471  §  22. 
atithority  of  president  to  transfer,  471  §  23,  24. 
statement  prior  to  application,  101  §  50;  468  §  7;  472  §  26;  474 

§  33  ;  469  §  15  ;  470  §  16,  17. 
renewal.  472  §  27. 
waiver  of  pa3rment  of  premium,  481  §  6. 
knowledge  of  agent.     (See  Agent.) 
agreement  to  treat  separate  property  as  joint,  637  §  28. 
to  limit  act  of  donation,  278  §  10. 

written  promise,  367  §  8 ;  536  §  20. 
show  estoppel  though  conditions  were  only  to  be  waived  in 
writing,  452  §  120,  121 ;  450  §  137;  457  §  139,  142 ;  531 
-^     §  81 ;  contra,  455  §  134. 


..r 


i..»v»V 


INDEX. 


779 


iremium  returned, 


i  §  36  ;  845  §  46. 


;   478  §80;    783 


PAROL  EVIDENCE— «>n«in««d. 

to  show  knowledge  of  co.,  469  §  14 ;  470  §  21. 
waiver  of  limitation  clause,  886  §  8. 
a  deed  to  have  been  intended  as  a  mortgage,  468  §  11 ;  474 

§85. 
that  re-insurance  was  for  first  assured,  571  §  8. 
Tary  the  policy,  478  §  26;  468  §  8,  10;  469  §  12,  18;  474  §  33, 

84;  656  §  2;  474  §  86  ;  475  §  39. 
explain  ambiguity,  474  §  87. 
identify  application,  468  §  9. 
real  party  in  interest,  472  §  27 ;  478  §  31 ;   879  §  53,  56 ;   880 

§  57,  58,  59. 
contradict  recital  of  payment  of  premium,  482  §  7. 
that  policy  was  to  date  from  application,  475  §  88. 
(See  PAROii  Contract.) 
PARTNERS,  109  §  12. 

(See  Alienation,  Insttbable  Interest.) 
PAYABLE  IN  CASE  OF  LOSS  TO, 

(See  Responsibility  of  Payee  fob  Acts  of  Assured,  Who  May  Sue.) 
PAYMENT  OF  LOSS, 

after  contract  sale  of  property,  478  §  8. 
effect  of  clause  giving  right  to  rebuild,  477  §  7  ;  478  §  12. 
by  order  on  secretary,  477  §  6. 
to  assignor  after  assignment,  477  §  5. 
to  be  made  as  stipulated  in  policy,  476  §  1,  2. 
when  the  sixty  days  begin,  478  §  11 ;  479  §  15. 
by  draft  on  third  person  agreed  on,  479  §  18. 
need  not  wait  six^  days  when  payment  refused,  479  §  16. 
under  several  policies,  478  §  10;  479  §  14, 17. 
where  insurers  refuse  to  adjust,  477  §  3;  703  §  15. 
preliminary  proofs  required,  477  §  4 ;  478  §  9. 
payable  to  third  party,  748  §  20 ;  744  §  23,  24. 
PAYMENT  OF  LOSS  TO  TRUSTEE,  480  §  1,  2^ 
PAYMENT  OF  PREMIUM, 

agreement  for  credit,  485  §  20,  23;  486  §  24. 

agent  may  assume,  483  §  10 ;  485  §  22. 

agreement  without,  201  §  26. 

by  agent  on  his  own  application,  201  §  28. 

by  running  accounts,  464  §  19. 

cash,  when  note  is,  486  §  28. 

delivery  of  policy  without,  200  §  25;  484  §  14;  486  §  24,  26. 

may  be  made  subsequently,  485  §  21. 

may  be  by  check  on  bank,  481  §  2. 

mode,  may  be  prescribed  by  agent,  481  §  2. 

on  assigned  policy,  486  §  25. 

recital  in  policy  of,  481  §  8;  482  §  7;  485  §  18;  160  §  14. 

to  agent  not  binding  when,  484  §  14. 

tender  of,  482  §  9. 

waiver  of,  43  §  42;  196  §  17;  481  §  4, 6;  482  §  6,  8,  9;  488  §  12, 13; 

484  §  17;  485  §  19;  486  §  26;  487  §  29. 
when  a  condition  precedent,  481  §  1 ;  484  §  15,  16 ;  486  §  27. 
PLACE  OF  MAKING  CONTRACT,  487  §  1,  2;  488  §  3,  4,  5. 
PLEADING  AND  PRACTICE, 

action  on  contract  for  policy,  500  §  58;  507  §  82. 

policy  pending  indictment  for  arson,  152  §  9. 
ofdebt,  498§44;  503  §  08. 

covenant,  574  §  1. 
for  refusal  to  insure,  not  maintainable,  495  §  27. 


780 


INDEX. 


PLEADING  AND  PRACTICE— conftnwci. 

allegation  of  no  other  insurance,  496  8  34. 
amendments,  887  §  11;  501  §  57;  503  §  60;  504  §  60. 

of  judgment,  504  §  66. 
appearance  for  corporations,  401  §  9. 
assured  must  prove  title  at  trial,  632  §  8. 
averment  of  notice  of  loss  must  he  denied,  409  §  13. 
application  not  required,  505  §  71. 
contract  of  insurance,  406  §  33 ;  510  §  09. 
fraud,  816  §  7;  401  §  8;  402  §  16. 
loss,  503  §  65. 

interest,  883  §  3;  605  §  78,  74;  506  §  80;  507  §  81. 
title  and  value,  400  §  7;  408  ^  45. 
compliance  with  condition,  492  §  14;  505  g  00,  70; 
507  §  83,  84. 
averment  that  policy  was  duly  assigned,  133  §  20. 
avoidance  under  conditions  must  be  plead,  688  §  40 ;  505  §  71 ;  506 

§  77,  84. 
creditors  enjoined  from  suing  stockholders  when  receiver  appointed, 

562  g  8. 
costs  withheld  as  a  penalty,  511  §  107. 
consolidation  of  cases,  490  §  6. 
costs,  742  §  14. 

defective  averment  cured  by  verdict,  502  g  59. 
demurrer,  405  §  32. 

defense  must  be  set  up  in  answer,  495  §  38,  29. 
declaration  on  policy  with  memorandum  attached,  194  §  11. 

policy,  to  be  paid  out  of  society's  funds,  489  §  8. 
what  must  or  need  not  be  alleged,  146  g  6 ;  494  §  24 ; 

496g36,  87,  88;  682§11. 
in  action  on  premium  note,  537  §  28. 
on  policy  renewed  by  endorsements,  574  §  1 ;  505  §  68, 

718 ;  507  §  88. 
indistinct  averment,  608  §  87. 
on  divisible  policy,  508  g  90. 
by  receiver  on  note,  510  §  102. 
(See  Construction.) 
declaration  for  assessments,  116  §  81 ;  117  §  32  ;  601  §  56;  689  §  30. 
on  assigned  policy,  134  §  25;  365  §  31 ;  142  §  56. 
on  agent's  bond,  142  §  1. 
double  plea,  492  §  16. 
feigned  case,  491  §  10. 
general  issue,  what  not  admissible  under,  608  §  92;  609  g  04;  611 

§  108; 
immaterial  issues.  499  §  61. 

instructions  to  jury,  404  §  23;  497  §  41 ;  600  §  52;  551  §  8. 
interpleading,  502  §  61. 
issue  as  to  fraudulent  loss,  492  §  16. 
judgment  on  agreement  for  policy,  450  §  3. 

non  ciatante  veredicto,  667  §  7. 
jurisdiction  of  justice,  534  §  11. 

county  court,  506  §  78;  636  §  18. 
matters  of  defense  that  must  be  pleaded,  181  §  4. 
misrepresentations  must  be  pleaded,  498  §  43. 
motion  in  arrest,  495  §  30. 
negative  pit  -jnant,  500  g  96. 

new  trial,  172  §  2;  175  §  17;  202  §  4;  268  §  8;  277  §  3;  337  §  15; 
405  et  »eq. ;  485  §  71 ;  471  §  26 ;  497  §  41 ;  650  §  1. 


INDEX. 


781 


74  §  1 ;  505  §  68, 


PLEADING  AND  PRACTICE— <»»«»«««?. 
nonsuitj  435  §  71. 

one  action  ngainst  several  companies,  810  g  104. 
prima  facie  case,  510  §  101. 
proof  of  preliminary  proofs  given,  529  %  73. 
plea  of  limitation  clause,  383  §  2;  390  §  10:  496  §  35. 

of  interest  in  one  not  supported  by  joint  interest,  508  §  80. 

under  two-thirds  or  three-fourths  clause,  436  §  73. 

of  fraud,  316  §7;  607  §85. 

of  fraud  and  false  swearing,  491  §  12 ;  494  §  22. 

of  defective  roof,  511  §  108. 

of  misrepresentation,  402  §  16;  493  §  19,  20,  21 ;  508  §  02. 

of  alteration,  334  §  7;  493  §  18. 

of  waiver,  493  §  21 ;  707  §  33,  34. 

of  notice  of  loss,  494  §  25 ;  508  §  91. 

of  want  of  preliminary  proofs,  582  §  85. 

of  other  insurance,  495  §  26. 

of  encumbrance,  498  §  46. 

of  alienation,  498  §  47. 

of  conditions  on  back  of  policy,  501  §  55. 

of  garnishment,  315  §  4 ;  603  §  64. 

of  breach  of  conditions  as  to  use  and  occupation,  267  §  1 ;  834  §  7 ; 

500  §  52. 
of  breach  of  warranty,  504  §  67. 
of  prohibited  articles,  506  §  75. 
of  rescission  of  contract,  316  §  6. 
alleging  compliance  so  far  as  is  necessary,  816  §  2. 
praj  er,  form  of,  502  §  58. 

questions  on  appeal,  438  §  79 ;  497  §  41 ;  501  §  56. 
reference  of  case,  492  §  13;  500  §  54. 
replication,  231  §  11;  388  §  17;  439  §  81. 
reforming  policy,  practice  in  Minnesota,  554  §  28. 

in  Pennsylvania,  568  §  16. 
trial  by  judge,  503  §  62. 
traverse,  403  §  16 ;  497  §  42. 
under  Virginia  statutes,  110  §  5,  6;  489  §  1. 
unnecessary  averments,  494  §  24. 
variance,  495  §  31 ;  496  §  84;  499  §  48,  49;  612  §  1 ;   505  §  60;  506 

§  76;  741  §  13. 
videlicet,  498  §  21. 

waiver  of  exceptions  to  rulings,  701  §  6. 
plea,  702  §  8. 

under  averment  of  performance,  514  §  13;  509  §  97. 
want  of  notice  must  be  plead  in  abatement,  309  §  1 9. 
what  must  be  shown  in  action  for  assessments,  113  §  15 ;  117  §  82. 
mny  be  shown  under  allegation  of  removal,  285  §  50. 
admitted  by  demurrer,  431  §  54. 

defects  cured  bv  verdict,  142  §  1 ;  490  §  7;  491  §  11;  502  §  59. 
when  suit  may  be  brought,  476  §  2 ;  477  §  3, 4,  7  ;  478,  §  9. 
where  defense  avers  alienation,  146  §  6. 
policy  is  an  order  to  pay,  489  §  2. 
there  are  mixed  questions  of  law  and  fact,  490  §  4. 
who  entitled  to  open  tnal,  442  §  86. 
(See  Covenants  to  Insure,  Questions  for  Court  and  Jury,  Venue, 

Who  Mat  Sue.) 
PLEDGE  OP  POLICY,  133  §  23. 
POLICY, 

after  death  of  assured,  128  §  1 ;  366  §  6.  ■' 


782 


INDEX. 


TOLICY— continued, 

after  assignment  may  be  annulled  by  agreement  with  assignor,  140 

authority  of  agent  to  issue,  89  §  81. 

change  of,  by  agent  or  officer,  88  §  28 ;  93  §  28 ;  274  §  12. 

delivery  of,  84  §  8 ;  42  §  88;  191  §  6 ;  197  §  18. 

duration  of,  208  §  4 ;  246  S  1,2  ;  247  §  8, 4 ;  S38  §  29. 

does  not  run  with  the  land,  188  §  42 ;  870  §  17. 

enforcement  of  contract  for,  266  §  1,  2, 8 ;  459  §  8 ;  500  §  58. 

interest  in  policy  and  proceeds.    (See  Intekebt  in  Policy.) 

not  varied  by  parol  promise,  474  §  86. 

on  unfinislied  vessel  not  marine  risk,  187  §  81. 

place  of  contract,  487  §1,2;  488  §  8, 4. 

pledge  of,  132  §  28. 

ratification  of,  40  §  88;  745  §  27. 

takes  effect  from  when,  191  §  5 ;  194  §  18;  286  §  58 ;  487  §  2 ;  488 

§8. 
(See  Assignment,  Consummation  of  Contract,  Construction,  Cancella- 
tion, Dependency  of  Policy  and  Premium  Note,  Entirety  and 
Divisibility  of  Policy,  Parol  Contract,  Reform  of  Policy,  Re- 
newal OF  Policy,  Revival  and  Bubpenbion  of  Policy,  Valued 
Policy,  Written  Portion  of  Policy.) 
PRELIMINARY  PROOFS, 

are  conditions  precedent,  162  §  8 ;  514  §  9 ;  515  §  19 ;  516  §  21,  23 ; 

517  §  28 ;  620  §  87 ;  521  §  89, 42 ;  SH  §  50 ;  526  §  59. 
as  evidence  to  the  jury,  277  §  3  ;  279  §  14,  16;  280  §  17 ;  287  §  58 ; 

292  §  94 ;  295  §  105 ;  206  §  107. 
authenticity  of,  515  §  16. 
completion  of,  361  §  18 ;  514  §  11 ;  621  §  40 ;  522  §  44,  46 ;  526  §  57 ; 

526  §68,  60;  527  §  65  ;  529  §  71. 
defects  in,  should  be  specified  by  company,  516  §  24 ;  520  §  86,  88 ; 

622  §  43 ;  528  §  40, 47 ;  624  §  62. 
duty  of  agent  to  point  out  defects,  895  §  41. 
estoppel  of  assured  by,  618  §  29 ;  623  §  48, 49. 
evidence  of,  383  §  39 ;  524  §  52. 
excused  by  insanity,  629  §  74. 
if  mailed,  presumed  to  be  received,  531  §  82. 
in  re-insurance,  569  §  3 ;  571  §  9. 
may  arrest  mistake  in,  526  §  53. 
not  of  substance  of  contract,  52  §  85. 
omission  of  articles  lost,  627  §  64 ;  628  §  68. 
on  assigned  policy  to  be  made  by  original  assured,  142  §  56. 
refusal  of  company  to  produce,  616  §  23. 
service  of,  519  §  35  ;  521  §  40. 
six  years  after  loss  held  enough,  526  §  61. 
sworn  to  by  agent,  530  §  75,  78. 
time  of  giving,  414  §  35  ;  415  §  41 ;  527  §  66 ;  528  §  70  ;  529  §  72 ; 

531  §  80 ;  706  §  42. 
waiver  of.    (See  Waiver.) 

what  encumbrances  and  other  insurance  to  be  stated  in,  263  §  51. 
what  required  in,  513  §  8, 4,  6,  7  ;  514  §  13 ;  515  §  20 ;  516  §  21 ;  618 

§30;  521  §41.  • 

when  in  season,  389  §  18;  512  §  2  ;  518  §  5 ;  514  §  10;  516  §  21 ;  416 

§  41 ;  526  §  61. 
when  not  verified,  515  §  18. 
(See  Books  of  Account  and  Vouchers,  Certificate  and  Notice  of  Loss, 

False  Swearing.) 


DfDEX. 


788 


th  asgignor,  140 


§18. 
00  §  58. 

OLICT.) 


;  487  §  2  ;  488 

[ON,  Caxcklla- 
Entirett  and 
>F  Policy,  Rk- 
OLiCT,  Valued 


;  516  §31,  23; 
§59. 
(  17 ;  287  §  58 ; 


1,45;  626  §57; 
;  620  §86,  88; 


2  §66. 


70  ;  529  §  72 ; 

Q,  263  §  51. 
516  §  21 ;  618 
I 

516  §21;  416 
ITICE  OF  Loss, 


PREMIUM 

may  be  paid  in  cash  in  a  mutual  company,  881  §  7, 8  ;  488  §  11. 
return  oi;  207  §  2;  214  §  17;  285  §  28;  261  §  46;  585  §  1,2;  686, 

§8,4,5;  680  §1. 
size  of,  as  evidence  of  greater  risk,  298  §  96. 
suit  for  premium  paid,  875  §  87. 
taxation  on,  625  §  1. 

(See  Payment  of  Prbhicm,  Premium  Notes.) 
PREMIUM  NOTES, 

assessments  are  conditions  precedent  to  action  on,  497  §  40 ;  587  §  23, 

20 ;  542  §  43. 
assessments  for  delinquency  of  others  illegal,  172  §  7. 
assignment  of,  void,  308  §  17. 
assignee  need  not  give  new,  536  §  16. 
authority  to  take,  582  §  1 ;  641  §  40. 
can  be  canceled  only  by  surrender,  688  §  6 ;  541  §  42. 
cannot  be  used  as  capital  stock,  639  §  82. 
collectable  at  discretion  of  directors,  536  §  19 ;  542  §  43. 
defective  organization  of  company  no  defense,  120  §  42 ;  122  §  62  ; 

123  §  55  ;  640  §  35,  36. 
evidence  of  compliance  with  statute,  284  §  41. 

company's  organization  and  capacity,  284  §  48;  642 

§46. 
for  open  policy,  538  §  27. 

insolvency  no  defense  to  action  on,  684  §  8 ;  638  §  28. 
interest  on,  537  §  24;  541  §  39. 
in  Indiana,  542  §  45. 

liability  for  losses  where  business  is  classed,  541  §  38, 41. 
maturing  of,  544  §  53. 

must  be  drawn  strictly  as  charter  provides  as  to  maturity,  648  §  50. 
necessary  to  complete  insurance,  459  §  5 ;  635  §  12 ;  542  §  44. 
no  liability  on,  without  loss,  685  §  14. 
payable  to  company  or  their  treasurer,  648  §  50. 

in  installments,  534  §  11. 
receivers  not  bona  fide  holders,  539  §  32. 
right  to  retain  percentage  after  loss,  214  §  17. 
set-off  against,  5^3  §  4;  634  §  9j  10, 11 ;  642  §  44  ;  605  §  11. 
statute  of  limitations,  when  begins,  544  §  53. 
surrender  of,  534  §  6 ;  535  §  13, 16 ;  540  §  34 ;  159  §  9 ;  685  §  2. 
taken  before  receiving  license,  637  §  25. 
transfer  of,  43  §  40;  471  §  28. 

illegal,  534  §  10. 
void,  if  policy  is  void  ah  initio,  538  §  8 ;  534  §  9 ;  227  §  22 ;  228  §  25 ; 

543  §  47. 
waiver  of,  483  §  12. 

where  statement  has  not  been  filed,  202  §  1, 2 ;  807  §  7 ;  808  §  16, 17 ; 
309  §  18,  20 ;  810  §  23  ;  488  §  4. 
charter  expires  before  maturity  of,  638  §  29. 
obtained  by  false  representations,  47  §  69;  648  §  48;  544 

§  51,  52. 
party  contracting  reftises  to  sign,  194  §  12. 
policy  is  surrendered,  535  §  16 ;  228  §  24,26. 

assigned  and  then  reassigned  as  collateral,  543  §  49. 
whole  note  may  be  declared  due  if  assessments  unpaid,  808  §  11; 

533  §  4  ;  535  §  12  ;  539  §  31 ;  587  §  1. 
where  defect  in  policy  is  waived,  237  §  21. 
(See  Assessments,  Estoppel,  Classification  of  Risk,  Defbndbnct  of 
Policy  and  Premium  Note,  Premium  Notes  in  Advance.) 


784 


INDEX 


PREMIUM  NOTES  IN  ADVANCE, 

after  failure  of  company,  645  §  2. 
are  payable  without  assessments,  648  g  18, 15. 
(Icmiind  of  payment,  548  §  12. 
note  described  not,  588  §  27. 
parol  iigrc'cmcnt  to  cancel,  545  g  8 ;  540  g  7. 
payment  of,  by  premiums,  645  g  I  ;  640  g  18. 
surrender  of,  545  g  8 ;  640  g  5, 6  ;  647  g  11. 
transfer  of,  85  g  18 ;  547  g  0, 10;  648  g  14.     . 
under  New  York  statutes,  648  g  10. 
when  may  be  transferred,  649  g  10. 
how  to  be  drawn,  648  g  60. 
validity  of,  545  §  8;  640  §  8 ;  648  §  14 ;  640  g  18. 
when  statute  of  limitations  commences  to  run,  648  §  10. 
where  payable  upon  assessments,  540  §  17. 
PRESIDENT, 

admissions  of,  87  §  10. 

afjrcement  of,  48  §  42. 

salary  when  receiver  appointed,  848  g  8. 

authority  to  waive  preliminary  proofs,  33  §  8. 

to  pledge  stock  acquiesced  in,  275  §  10. 

to  transfer  notes,  35  §  13 ;  42  §  40 ;  40  §  08 ;  471  §  28,  24. 

to  revoke  subniissic    to  arbitration,  108  §  7. 

to  consent  to  assignments,  08  §  28 ;  180  §  10,  11. 

to  waive  by-laws  and  conditions,  83  §  4 ;  164  §  18 ;  433 

g  61 ;  488  §  12. 
to  consent  to  removal,  468  g  2. 
to  contract  for  renewal,  400  ^  0. 
to  deliver  up  premium  note  m  advance,  546  §  8. 
evidence  of,  283  §  80. 
mav  be  witness  for  company,  288  §  58. 
PRESUMPTION, 

(See  Burden  op  Pboof.) 
as  to  action  of  committee,  164  §  18. 
as  to  acceptance  of  proposition  to  insure,  194  §  13. 
from  refusal  of  company  to  produce  papers,  510  §  23. 
PRINCIPAL  AND  AGENT, 

(See  Agent.) 
PRIVATE  INSTRUCTIONS, 

(See  Agent.) 
PROFITS, 

must  be  insured  as  such,  351  §  14 ;  050  §  62. 
(See  CoNSE(iOE>fTiAL  Damages,  Dividends,  Imsuhable  Interbst.) 
PRO  RATA  CLAUSE, 

(See  Contribution.) 
PROVISO,  180  §  4. 
QUESTIONS  FOR  COURT  AND  JURY, 

authenticity  of  preliniiiiary  proofs,  516  §  10. 
completion  of  prelimini'.r'  proofs,  389  §  18;  514  §  11. 
compliance  with  conrlitioris  as  to  preliminary  proofs,  514  g  11. 
consent  of  landlord  in  tenant's  alteruti(ms,  85  §  5. 
diligence  in  giving  uoUce  of  loss,  407  §  5. 

of  other  insurance,  434  §  04 ;  442  §  86. 
furnishing  preliminary  proofs,  889  §  18. 
fact  of  agency,  55  §  92. 
extent  of  agent's  authority,  43  §  43  ;  44  §  40. 
gross  negligence  or  misconduct,  005  §  2. 
identity  of  property  described,  550  §  3;  553  §  20,  23;  S52  §  14. 


INDEX. 


785 


QUESTIONS  FOR  COtJRT  AND  JURY— eontinued. 

increase  of  risk,  84  1 1 ;  8854;  18a§ll;  277  g  4;  850§a.4;  881 
8  7 ;  884  §  26;  608  §  a ;  678  }  82;  679  §  42,  48 ;  691  §  70. 

by  alteration,  889  g  28. 
interest  intended  to  be  insared.  872  $  22 ;  888  §  17,  21. 
knowledge  of  assignor  of  premium  note,  809  §  18. 
liability  for  assessments,  282  {  19. 
materiality  of  inquiries  of  insurer,  718  §  28. 

misrepresentations,  95  §  82 ;  240  §  11 ;  243  §  22;  408 

§  20;  254  §  26 ;  662  g  10,  16;  668  §  18,  19,  22 ;  681 

g  7 ;  680  g  36 ;  670  §  17. 
concealment,  95  $  82 ;  174  §  12 ;  248  §  22;  502  §  58  ; 

660  §  1 ;  561  §  6,  8 ;  681  §  7;  630  §  86. 
ordinary  acts  of  ownership,  665  §  2. 
practice  as  to  reforming  policy  in  Minnesota,  654  §  28. 
reasonable  time,  654  §  25,  27. 
suiflciency  of  builder's  oortificate,  169  g  28. 
false  swearing,  existence  of,  for  jury,  808  §  20 ;  804  §  22,  25 ;  004 

§9. 
whether  notice  and  proof  of  loss  were  sent  in  time,  414  §  88. 
waiver  of  preliminary  proofs  is  for  jury,  627  §  68;  520  §  71;  554 

§24. 
consummation  of  parol  contract,  464  §  19. 
occupancy  in  reasonable  time,  684  §  52. 
reasonable  time  to  remove  building,  240  §  14. 
sufficiency  of  data  for  assessments,  115  §  28. 
of  notice  of  loss,  552  §  11,  12,  18. 
waiver  of  defects  in  certificate  of  loss,  166  $  18. 
what  is  meant  by  "  manufacturing,''  651  §  6. 
what  buildings  are  "  exposures,"  551  §  9. 
what  is  incident  to  a  permitted  busineas,  672  g  42. 
what  is  a  cessation  of  work  in  a  factory,  722  §  1. 
what  is  a  "  suitable  watch,"  723  §  2. 
whether  owner  knows  all  the  facts,  87  §  8. 
whether  misdescription  reduced  pemium,  230  §  6. 
whether  note  was  given  for  premium  in  advance,  545  §  4. 
whether  parol  contract  at  an  end,  468  §  15. 
whether  *'  groceries  "  included  liquors,  553  §  17. 
whether  property  was  replaced  in  reasonable  time,  656  §  7. 
whether  waiver  is  sufficiently  proved,  406  §  7 ;  552  §  16. 
RATIFICATION,  40  g  83;  45  §  48. 
REBUILD,  REPAIR  OR  REPLACE, 

action  after  election  to  reinstate,  558  §  11 ;  559  §  18, 14. 

assignment  pending  time  of  election  to,  655  §  4. 

cost  of  reinstatement  not  the  rule  of  damages,  213  §  12,  13;   559 

§  12. 
interdict  to,  555  §  1,  3;  658  §  10. 
reinstatement  discharges  policy  pro  tanto,  624  §  3. 
prevented  by  insured,  560  §  16. 
removal  pending  time  of  election  to,  555  §  8. 
right  must  be  expressly  reserved,  555  §  2. 
rule  of  damages  where  neglect,  218  §  26;  219  §  30,  31. 
time  of  election  to,  556  g  5,  6,  7;  557  §  8. 
where  work  is  defective,  557  §  9;  560  §  15. 
,  RECEIVERS, 

assessments  by,  114  §  20;  118  §  34;  538  §  26 ;  561  §  2. 
appointment  of,  suspends  salaries,  348  §  8. 
di8tributi>ji7.  of  insurance  money,  873  §  88. 

60 


w 

I 

1 

1 

-8            ; 

1  |j 

;l 

I'H 

^'H 

J  ^B 

11 

'i  H 

786 


INDEX. 


'RECEIVERS— continued. 

liability  of  one  for  default  of  other,  563  §  6. 

no  power  to  waive  proof  of  claims,  561  §  4. 

order  in  chancery  binding  on,  561  §  1. 

powers  of,  562  §  6. 

set-off  against,  562  §  9 ;  602  §  2 ;  604  §  7. 

suits  by,  545  §  8 ;  546  §  6  ;  661  §  8  ;  605  §  1. 
RECOVERY  BACK  OP  LOSSES  PAID,  568  §  1,  2,  8,  4. 
REFORM  OF  POLICY, 

bill  to  compel  endorsement  of  other  insurance,  264  §  1. 

bill  to  reform,  567  §  15. 

evidence,  380  §  58 ;  667  §  15 ;  568  §  18  :  569  §  19. 

for  mistake  in  description  of  property,  664  §  1,  2. 

by  agent,  564  §  3 ;  566  §  11 ;  567  §  12. 
in  describing  residence  of  assured,  565  §  6. 
of  law,  566 1  9. 
in  application,  40  §  86. 

practice  in  Minnesota,  554  §  28. 

in  Pennsylvania,  568  §  16. 

mistake  must  be  clearly  proved,  380  §  68 ;  474  §  87 ;  665  §  7 ;  567 
§14. 

of  policy  to  husband  on  property  of  wife.  566  §  10. 

where  policy  varies  from  agreement.  564  §  3 ;  567  §  14. 
denies  encumbrance,  564  §  4. 
mistake  is  mutual,  665  §  8 ;  567  §  12,  13. 
RE-INSURANCE, 

by  agent  for  both  parties,  36  §  17 ;  37  §  20 ;  89  §  32. 

concealment  by  re-assured,  173  §  4. 

evidence,  571  §  9. 

insolvency  of  re-assured,  570  §  6,  8. 

interest  of  original  assured,  372  §  23;  570  §  4;  571  §  8. 

liability  of  re-msurer,  570  §  6,  6,  7 ;  663  §  5. 

meaning  of  "  assured"  in  policy  of,  571  §  8. 

misrepresentation  by  re-assured,  716  §  27. 

preliminary  proofs  in,  569  §  8;  571  g  9. 

pro  rata  clause  in,  208  g  6. 

usage  to  apportion  loss,  663  §  6. 

valid  contract.  569  §  8. 

when  void  in  England,  569  §  1,  2. 

when  limitation  clause  begins  to  run,  887  §  18. 
(See  Damaoks.) 
REMOVAL, 

agreement  to  remove  buildings,  240  §  14. 

bevond  locality  named  in  policy,  458  §  2 :  728  §  15. 

damages  for,  672  §  2 ;  578  §  4. 

effect  on  conditions,  072  §  47. 

horses,  &c.,  may  travel,  599  §  48. 

in  apprehension  of  fire,  572  §  1,  2;  578  §  6,  6;  674  §  7. 

notified  for  renewal,  276  §  21. 

parol  consent  to,  458  §  2. 

pending  election  to  replace,  556  §  3. 

necoEsity  of,  673  §  8. 

(See  Risk.) 
RENEWAL, 

after  partial  loss,  182  §  16. 

notice  of  increase,  472  8  27. 

by  administrator,  867  g  6 ;  575  §  6 ;  746  §  28. 

with  notice  of  removal,  276  §  21. 


ii>n)EX. 


787 


;  474  §  87 ;  665  §  7 ;  567 


TLENEWAL— continued. 

by  endorsements,  S75  §  1 ;  676  §  8. 
by  renewal  receipts,  70  §  49 ;  574  §  2. 
is  an  acknowledgment  of  interest,  576  §  7;  577  §  11. 
of  other  insurance,  422  §  24 ;  487  §  76 ;  575  §  6 ;  677  §  13. 
of  policy  to  firm  after  one  partner  had  retired,  70  §  49. 
policy  to  partner,  renewed  to  firm,  578  §  14. 
parol  contract  for,  460  §  6;  576  §  10;  577  §  12. 
whether  a  new  contract,  576  §  8,  9-  677  §  11, 12;  578  §  15. 
with  knowledge  as  to  misrepresentations,  675  §  4. 
with  special  changes,  716  §  26. 
RENT, 

is  evidence  of  value,  286  §  52. 
must  be  insured  as  such,  180  §  8. 

(See  CoNSB<iuENTiAL  Damages.) 
REPRESENTATIONS, 

(See  Warbantt  and  Rbfresbntaticn.) 
RESCISSION,  316  §  6;  587  §  21. 
RESPONSIBILITY  OF  ASSIGNEE  FOR  ACTS  OF  ASSIGNOR, 

power  of  assignor  to  invalidate  policy,  579  §  5 ;   581  §  10,  14 ;    682 

§16,18,19;  583  §20,  21. 
where  assignor  alienates,  61  §  21 ;  66  §  85 ;  67  §  40 ;  679  §  8 ;  582  §  16. 
makes  other  insurance,  481  §  54;  678  §  1,  8;  679  §  4; 

581  §  12. 
fails  to  pay  assessments,  226  §  18 ;  687  §  8. 
violates  conditions,  670  §  2;  581  §  11, 18 ;  682  §  17. 
RESPONSIBILITY  OF  ASSURED  FOR  ACTS  OF  OTHERS, 

for  acts  of  agents,  140  §4;  408  §  1,  3;  404  §  7;  441  §  86  ;  584  §  6; 
716  §  25. 
guests,  676  §  84. 
tenants,  85  §  5;  889  §  21 ;  677  $  87;  678  §  41;  682  §  48 ; 

684§6,  7,  8;  707  §  85. 
servants,  408  §  1,  8,  6 ;  683  §  1 :  684  §  3,  4 ;  681  §  46 ;  713 
§  16. 
sub-lessees,  684  §  4. 
RESrCNSIBILITY  OF  PAYEE  FOR  ACTS  OF  ASSURED,  72  §  62;  253 

§  24;  428  §  31 ;  579  §  6;  680  §  7,  8,  9. 
RETURN  PREMIUM,  686: 

(See  Pbehiuh.) 
REVIVAL  AND  SUSPENSION  OF  POLICY, 
assignment  of  suspended  policy,  687  §  3. 
by-law  as  to  suspended  policy,  588  §  4. 
for  increase  of  risk,  844  §  42 ;  346  §  49. 
for  over-insurance,  458  $  128. 
no  recovery  for  loss  during  suspension,  688  §  4. 
non-pyment  of  assessment,  121  g  45;  122  §  58. 
pending  assignment  of  policy  to  alienee,  68  §  42. 
revival  of  void  policy,  688  $  6,  7. 
waiver  of  suspension,  687  §  8 ;  688  §  6 ;  680  §  8. 
where  prohibited  use  ceases  before  loss,  155  §  1 ;  611  §  4;  690  §  76. 
property  is  sold  and  repurchased,  58  §  9. 
stock  is  sold  and  renewed,  66  §  3 ;  68  §  42. 
(See  Dbpbndenot  of  Pouct  and  I^bkixtm  Note.) 


RISE, 


after  removal,  595  $  27 ;  698  §  21. 

commences  when,  191  §  6;  192  §7;  198  §  8,  9,  10;  197  S  19;  198 

§20;200§22,  28,  26. 
fire  and  marine,  187  §  31. 


788 


INDEX. 


RISK — continued. 

fires  by  mobs,  689  §  1,  2;  591  §  9, 10;  696  §  81 ;  676  g  88. 

losses  by  explosion,  690  §  6,  8;  591  §  11, 12;  598  §  19,  20;  596  §  29; 

696  §  82;  597  §  36;  598  §  41 ;  599  §  46;  601  §  65. 
losses  by  falling  wall  of  an  adjoining  house,  690  §  4 ;  692  §  18. 
heat  without  ignition,  690  §  6. 
invasion,  &c.,  699  §  44. 
lightning,  882  §  1 ;  888  §  2,  8 ;  663  §  6. 
negligence,  408  et  teq. 
removal,  672  et  teq. 

size  of,  inferred  from  amount  of  premium,  295  §  96. 
spontaneous  combustion  of  coal,  691  §  13. 
theft,  572  §  2 ;  691  §  14 ;  629  et  $eq. 
unlawful  use,  684  §  7;  616  §  21. 
efforts  to  extinguish  fire,  691  §  14. 
smoking,  686  §  9, 10. 

blowing  up  build^g  to  arrest  fire,  590  §  6 ;  607  §  80. 
tearing  down  building  to  arrest  fice,  690  §  7. 
policy  on  store,  697  §  87 ;  598  §  40. 
fires  added  in  other  building,  698  §  88. 
origin  offire,  696  §80. 

what  losses  are  covered  by  policy,  692  §  16, 17;  .693  §  22;  594  §  23, 
24,  26,  26;  695  §  28;  596  §  83,  84;  697  g  87,  40;  598  §  40,  42; 
699  §46,  47;  601  §  63,  64. 
(See  GoNSTRUCTiON,  What  Pbopbrtt  is  Covebbd  bt  Poliot.) 
SALE, 

(See  Alienation.) 
SECRETARY, 

admissions  of,  36  §  19;  87  §  22;  49  §  67;  197  g  18;  288  §  39. 
authority  to  consent  to  assignment,  86  §  12;  86  §  16. 
to  endorse  change,  276  $  20. 
revoke  submission  to  arbitration,  108  §  7. 
transfer  notes,  284  §  44 ;  868  §  2. 
waive  premium  note,  459  §  5 ;  462  §  12. 
to  relieve  from  assessments,  127  §  71. 
bond  during  "  continuance  in  office,"  143  §  4. 
evidence  of,  282  §  80. 
may  be  witness  for  company,  286  g  66. 
8ET-0PP, 

against  owner  of  goods  held  in  trust,  866  g  2. 
by  company  against  broker,  480  g  2. 

of  claim  against  agent  of  assured,  602  g  1. 
assured  against  company,  847  g  8;  603  g  8,  4,  6;  601  §  9, 10. 
officer  bought  on  speculation,  605  §  12. 
assured  against  receiver,  646  g  1 ;  602  g  2;  604  g  8. 
garnishee,  818  g  3, 4;  604  g  7. 
STATEMENT, 

(See  AoBNT,  Foreiqn  Inburanob  Companies.) 
STATUTE  OP  LIMITATIONS,  648  g  16;  894  g  87;  644  g  53. 

(See  Limitation  Claubb,  Premium  Notbs.) 
STOCK, 

transfer  of,  655  g  1,  2,  8,  4. 
STOCK  NOTES  AND  SUBSCRIPTIONS, 

agreement  not  to  be  liable  on,  610  g  17. 
assessments  on,  606  g  2 ;  608  g  10 ;  609  §  18, 14. 
authority  to  take  subscriptions,  606  g  8. 
cannot  retract  subscription,  609  g  16. 
illegal  cancellation  of,  606  g  1. 
in.New  York,  608  g  11 ;  609  §  12, 14. 


INDEX. 


789 


;  675  g  88. 

»98§19,20;695§30; 
01  §  55.  ' 

>0§4;  592  §18. 


6. 


kium,  295  S  96. 
§  13. 


>0§6;  597  §36. 
90  §7. 

B8. 

17;  598  §23;  694  §  23, 
87,  40;  598  §  40,  43 1 

'BBED  BY  POLICT.) 


r§18;  288  §39. 
16  §  16. 

58  §7. 

gl2. 
I. 


,  602  §  ]. 
4,6;  601  §9,  10. 

1§8. 


PANIB8.) 

544  §  53. 

fOTEB.) 


4. 


STOCK  NOTES  AND  SUBSCRIPTIONS.-(!onei»t«i<f. 
liability  after  fortelture  of  stock,  607  §  6. 
organization  of  company,  606  g  4 ;  600  §  15. 
payment  of  percentage  down,  606  §  3. 
where  capital  has  not  been  paid  in,  607  §  6. 

all  the  stock  has  not  been  subscribed,  607  §  7. 
obtained  by  fraudulent  representations,  607  §  8. 
stock  is  increased,  608  §  9. 
what  does  or  does  not  constitute,  608  §  10,  11 ;  609  §  18. 
(See  Pbeiqum  Notes  m  Advance.) 
STORING  OR  KEEPING, 

instruction  as  to,  618  §  18. 

occasional  introduction  of  prohibited  articles,  610  ^  1,  8. 
of  prohibited  articles  in  business  not  prohibited,  667  §  4 ;  616,  §  18, 
19:  673  §28. 
articles  not  prohibited,  610  §  2. 

not  cause  of  fire,  616  §  20. 
liquors  in  boarding  house,  611  §  5. 
particular  act  not  proved  by  habit,  394  §  98. 
temporary  deposit  of  prohibited  articles,  613  §  10,  11;  614  §  15. 
where  prohibited  use  ceased  before  fire,  611  §  4;  615  §  17. 
risk  is  not  increased,  611  §  6 ;  616  §  30. 
prohibited  articles  are  in  stock  insured,  611  §  7;  613  §  0 ;  613 

§12;  614  §14,  16. 
prohibited  articles  are  used  in  repairing,  611  §  8. 
(See  Camphene,  Gunfowdbb,  Use  and  Occupation.) 
SUB-AGENT,  42  §  89. 
SUBROGATION, 

of  assured  to  judgment  rights  of  mortgagee,  368  §  11. 
to  rights  of  creditor  insured,  620  §  10;  621  §  15;  632  §  20. 
assured  against  the  hundred,  618  §  1,  2. 
incendiary,  620  §  9. 
prior  insurer,  618  §  8. 
raihwad  co.,  619  §  6;  621  §  14 ;  632  g  16, 

18;  623  §  21. 
steamboat,  619  §  8. 
wrongdoer,  628  §  22. 
mortgagee,  221  §  5;  470  §  19;  619  §  5,  7;  631  §  12, 18; 

379  §55;  622  §  19. 
vendor,  71  §  51 ;  220  §  1 ;  618  §  4;  619  §  11;  622  §  17. 
SUCCESSIVE  LOSSES,  624  §  1,  2,  8;  635  §  4. 
SURPLUS  PROFITS, 

(See  DrviDBNDS.) 
SURVEY, 

is  it  same  as  application,  96  §  84 ;  104  S  64. 
SUSPENSION, 

(See  Revival  and  Suspension.) 
TAXATION, 

by  city  or  town,  627  §  12, 13 ;  628  §  14. 

coin  basis,  636  §  8. 

computation,  637  §  11 ;  628  §  17. 

for  premiums  and  interest,  625  §  1. 

no  right  vests  in  beneficiary  of  tax,  628  §  16. 

on  annual  profits,  625  §  2. 

accumulated  Ainds,  626  §  8;  623  §  15. 

agencies  of  foreign  companies,  806  §  8,  4 ;  809  |^  21 ;  626  §  4,  6 ; 

permanent  f^ds,  626  §  S. 


«»«i«U,w(U(K»«<««S».-  •■ 


790 


INDEX. 


^ 


TAXATION— continned. 

statutes  of  N.  Y.  constraed,  628  §  7. 
U.  S.  bonds,  687  §  10. 
THEFT,  642  §  14;  629  §  1,  2,  8, 4,  5;  630  §  6,  7,  8. 
TIME, 

of  suing,  see  Limitation  Clausie. 

reasonable,  to  perform  a  condition  subsequent,  844  §  45. 

waived,  see  Waivkr. 

(See  QuBBTioNB  fob  Court  and  Jury.) 
TITLE, 

after  fraudulent  alienation,  641  §  40. 

concealment  of,  177  §  25;  631  g  7.;  637  §  37;  640  §  30;  646  §  60; 

646  §53;  647  §  64. 
consent  to  assignment  of  policy,  notice  of,  68  §  42. 
construction  ofclauses  as  to,  639  §  84,  85. 
in  wife,  265  §  7. 

joint  insurance  by  owners  in  seyeralty,  687  §  28 ;  644  §  48. 
misrepresentation  of,  268  §  8;  177  §  24;  631. §  7;  682  §  9;  633  §  15; 
635  §  19,  21 ;  686  §  24,  26 ;  687  §  26 ;  689  §  33,  84,  86 ;  640  §  87 ; 
646  §51,  62;  712  §  12. 
of  buildings  on  leased  land,  640  §  89;  641  §  40,  42;  645  §  49;  648 

§67;  660  §68;  664  §  74. 
I>roofof,  «32§8. 

title  of  the  land  in  a  stranger,  not  known  at  time,  278  §  11. 
where  by  effect  of  executory  contract,  849  §  6;  630  §  2;  638  §  12; 

687  §  26;  688  §  81,  82;  644  §  47;  647  §  66;  648  §  68. 
where  by  lease,  630  §  1 ;  681  §  6 ;  638  §  13,  14;  684  §  18;  649  §  59. 
defective  deed,  632  §  10. 
equitable,  638  §  81 ;  642  §  43 ;  644  §  48. 
mortgage.  689  §  88;  641  §  42;  647  §  65. 
tax  title,  638  §  29. 
where  correctly  plated  to  agent,  644,  §  45 ;  651  §  64 ;  662  §  68. 

encumbered,  681  §  4,  6;  684  §  17;  635  §  20;  636  §  23;  643 

§44;  649  §60. 
for  life,  681  §  3 ;  684  §  16 ;  688  §  80. 

(See  Alienation,  Encumbrancb.) 
TRANSFER  OF  STOCK,  656  §  1,  2,  8,  4. 
TWO-THIRDS  OR  THREE-FOURTHS  CLAUSE, 

effect  of  mortgage  on  damages  under,  212  §  6. 

insurance  in  excess,  667  §  6 ;  660  §  16,  16. 

on  insurance  by  mortgagee,  660  §  14. 

rule  of  damages  under,  204  §  11;  211  §  6;  218  §  11 ;  424  §  84;  656 

§  2,  8;  657  |  4,  6,  7;  668  §  8,  9,  10;  669  §  12,  18;  680  §  17. 
Beveral  subjects  insured,  861  §  18. 
value  subsequeatly  increased,  661  §  19. 
valuation  under,  668  §  1. 
where  value  is  over-stated,  684  §  18 ;  669  §  11. 
U3A0B, 

amount  of  goods  on  hand,  294  §  102. 

as  to  form  of  policy,  866  §  13. 

as  to  liability  for  loss  by  lightning,  668  §  6. 

as  to  payment  of  premium,  468  $  14. 

as  to  practice  in  giving  consent  to  other  insurance,  664  §  8. 

as  to  storing  not  evidence  of  particular  storing,  294  §  98. 

as  to  transfer  of  stock,  666  $  8. 

cannot  be  shown  to  vary  policy,  488  §  10;  682  §  2;  668  §  6. 

in  another  State,  862  §  2 ;  668  §  4. 

local  custom,  664  §  10. 


INDEX. 


791 


)44  §  45. 

IT.) 

640  §39; 

645  § 

50; 

42. 

;  644  §  48. 
r;  682  §9; 
83,34,86; 

633  § 
640  § 

15; 
37; 

10,42;  645  §49;  648 


e,  273  §  11. 
I;  630  §2;  633  §12; 
I;  648  §58. 
684  §18;  649  §59. 

48. 
55. 

§64;  652  §68. 
§20;  636  §23;  643 


I  §11;  424  §84;  656 
12,18;  660  §17. 


ice,  664  §  8. 
294  §  98. 

\  2;  668  §  5. 


USAGE — continued. 

of  camphene  in  printing  establishments,  285  §  49. 

to  authorize  a  draft  drawn  by  an  officer,  296  §  111,  112. 

to  prove  notice,  291  §  84. 

to  retain  percentage  on  premium  note,  214  §  17. 

to  surrender  note  and  cancel  policy,  281  §  28. 

to  explain  meaning  of  "  storehouse,"  283  §  36. 

"a  house  filled  in  with  brick,"  668  §  3. 
"a  room,"  664  §9. 

"there  id  a  watchman  nights,"  665  §  12. 
to  explain  terms  of  trade,  663  §  7. 
to  insure  consigned  goods,  662  §  1  ;  664  §  11. 
to  show  what  is  a  suitable  watch,  723  §  8. 
to  put  timber  on  the  street  adjoining  ship  yard,  728  §  13. 
to  call  building  a  "  wood-house,"  730  §  22. 
where  not  known  to  assured,  480  §  2. 
USE  AND  OCCUPATION, 

adjoining  premises,  683  §  53. 

as  to  tenants,  669  §  13;   672  §25;  681  §47;  see  Responsibility 

FOR  Acts  op  Others. 
by  tenant  at  will,  674  §  89. 

sheriff  for  selling  goods,  675  §  82. 

putting  up  steam  engine,  836  §  12;    339  §  21,  23;    681  §  44; 
690  §  73. 
carpenter  shop  in  china  factory,  749  §  1. 
casual  use,  681  §  46 ;  685  §  54, 
change  of,  100  §  48;   669  §  18;   672  §  25;   671  §  20;   673  §  29; 

688  §  65,  66  ;  691  §  78. 
change  of  trade  or  business,  669  §  15 ;  670  §  IT ;  678,  §  41 ;   679 

§42;  G82§48;  707  §  35. 
for  bawdy-house,  675  §  33 ;  677  §  37. 

other  illegal  occupation,  672  §  23 ;  689  §  67. 
keeping  of  ashes,  711  §  8;  713  §  16. 
lamps  in  picking  room  of  factory,  710  §  3. 
making  repairs  or  alterations,  338  §  18 ;    339  §  21,  22 ;  665  §  2;  666 

§  3;  669  §  14. 
mixing  paints  in  bam,  671  §  19. 
night  auctions,  667  §  6. 
of  a  boarding-house,  669  §  11,  12. 

building  described  as  a  "storehouse,"  283  §  36;  689  §  68. 

"dwelling-house,"     688  §  66;     689 
§68. 
occupied  as  a  "  dry  goods  store,"  679  §  43. 
"occupied,"  684  §  50;  689  §  68,  69 ;  691  §  76. 
"  unoccupied  but  to  be  occupied  by  tenant,"  684 

§52. 
"  to  be  occupied  as  a  tavern,"  667  §  5. 
"  not  to  be  used  as  a  coffee-house,"  672  §  27. 
grist  mill  for  carpenter's  work,  670  §  16. 
room  for  drawing  lottery,  672  §  23. 
tavern  bam  for  livery  stable,  674  §  30. 
premises  for  prohibited  uses,  207  §  1 ;   268  §  5  ;    673  §  27 ;   676 

§  84;  678  §  41 ;  686  §  58  ;  088  §  64. 
unfinished  building,  678  §  40. 
statement  as  to,  685  §  65,  56 ;  688  §  68. 
what  is,  687  §  60. 
temporary  change  in,  667  §  8;  671  §  21,  22;   674  §  31 ;    676  §  85, 
86;  687  §62. 


792 


USE 


INDEX. 


^ 


! 


! 


AND  OCCUPATION— «MJ«in««<;. 

use  of  fire  kiln  in  flouring  mill,  677  §  38 ;  670  §  43. 
whorehouse  becomes  vacant,  836  §  13  ;  670  §  18;  672  §  24;  681 
§45;    684  §61,  52;  686  §  57;   687  §  69;   688  §65,66; 
691  §76,78;  692  §  79. 
lamps  are  stated  to  be  covv^red,  182  §  7. 
machinery  for  grinding  is  added,  to  engine,  232  §  12. 
machinery  for  grinding  is  put  in  paper  mill,  668  §  10. 
insured  goods  have  been  removed,  681  §  47. 
prohibited  use  ceases  before  loss,  155  §  1 ;  611  §  4 ;  690  §  75. 
tannery  without  steam,  690  §  73. 
mill  which  runs  only  part  of  year,  690  §  74. 
where  clerk  ceases  to  sleep  in  store,  678  §  89. 
(See  Alteratioit,  Camphtnb,  Concbalmbnt,  Storing  or  KEEPmo, 
Written  Portion  of  Policy.) 
VALUE, 

increased  afterwards,  661  §  19;  662  §  21.    . 
contradictory  values  in  different  applications,  693  §  8. 
fraudulent  over-valuation,  693  §  4 ;  694  §  9. 
in  open  policy  on  stock,  693  §  5,  6. 
misrepresentations  as  to,  731  §  25 ;  418  §  13;  692  §  1. 
overstatement  of,  634  §  18 ;  658  §  11 ;  692  §  2 ;  693  §  7. 

in  preliminary  proof,  302  §  18. 
valuation  material  to  the  risk,  693  §  3 ;  714  §  20;  694  §  10;  695  §  14. 
ALUED  POLICY, 

damages  under,  282  §  29;  666  §  1,  2,  8;  657  §  7;  695  §  1. 
what  are,  695  §  2 ;  696  §  3,  4,  6,  6. 
VENDOR  AND  VENDEE, 

(See  Alienation,  Interest  in  Policy,  Subrogation.) 
VENUE 

.     by-laws  and  conditions  as  to,  152  §  9,  10 ;  386  §  10 ;  697  §  2,  3 ;  698 
§6,  7;  699  §8,  9,  10. 
change  of,  169  §  1,  2. 
under  Massachusetts  statutes,  697  §  1. 
when  regulated  by  act  of  corporation,  698  §  4,  5 ;  700  §  11. 
VOUCHERS.    (See  Books  of  Account  and  Vouchers  ) 
WAIVER, 

by  receiving  premium  for  renewal,  575  §  4,  5,  6 ;   704  §  18 ;  706 
§  80,  31. 
election  to  rebuild,  708  §  17. 
endorsement  of  permit  to  remove,  704  §  20, 
receiving  assessments,  137  §  88 ;  708  §  22,  89. 
consent  to  assignment,  708  §  41. 
parol  in  sealed  policy,  707  §  33,  36,  87. 
parol  though  conditioned  against,  531  §  81. 
investigating  loss,  104  §  68. 
issue  of  policy,  of  committee's  approval,  154  §  18. 
"  contained  in  "  is  a  limitation,  788  §  43. 
in  equity,  702  §  18. 

may  be  shown  under  averments  of  performance,  614  §  13. 
of  conditions  by  president,  83  §  3,  4. 
surrender  of  policy,  226  §  17. 
plea,  702  §  8. 

exception  to  ruling  of  court,  701  §  6. 

answers  to  interrogatories,  98  §  27;  641  §  41 ;  702  §  9;  704  §  21. 
forfeiture  of  policy,  224  §  9,  10,  11 ;  225  §  13,  16 ;  226  §  17 ;  264 
'  §2;  227  §20;  439    81 ;  472§27;  589  §  8;  687§  3;  688§  7; 

708  §  38. 


INDEX. 


793 


inro  OB  Eeepino, 


,  6,  6;   704  §18;  TOG 


WAIVER — continued. 

of  suspension  of  policy,  587  §  8 ;  688  §  5. 
statement  of  encumbrances,  641  §  41. 
over-insurance,  48  §  61. 
change  of  occupancy,  707  §  85,  87. 
misrepresentations,  704  §  19. 
payment  of  premiums,  705  §  25. 
premium  note,  488  §  13. 
payment  of  premium,  48  §  43 ;  196  §  17  481  §  4,  5 ;  482  §  6,  8,  9 ; 

488  §  12. 

endorsement  of  other  insurance,  440  g  83 ;  473  §  27 ;  265  §  6. 
condition  as  to  other  insurance,  424  §  82 ;  463  §  61, 62  :  437  §  78: 

489  §  81 ;  443.§  88 ;  687  §  5 ;  453  §  119. 

limitation  clause,  883  §  2,  8;    384  §  4,  6,  7;   385  §  8;   887 
9  §  13, 13 ;  888  §  15,  16, 17 ;  390  §  20,  21 ;  891  §  26 ;   392  §  27, 

81 ;  703  g 16 ;  398  §  84. 
notice  of  loss,  407,  §  2,  6 ;  408  §  7,  9 ;  409  §  14 :  410  §  17, 18 ;  411 

§20;  418  §32;  518  §  81. 
certificate  of  loss,  164  §  10,  11 ;  165  §  13 :  166  §  19;  167  §  21 ;  168 

§33;  700  §3;  706  §  28. 
forfeiture  for  non-nayment  of  premium,  487  §  39. 
unanswered  questions,  104  §  63,  65 ;  105  §  69;  98  §  27. 
appraisement  in  particular  mode,  108  §  10. 
only  occurs  during  currency  of  policy,  274  §  13. 
of  time,  414  §  88;  415  §  41 ;  627  §  66;  628  §  70;  629  §  72 ;  631  §  80. 
preliminary  proofs,  88  §  8 ;  153  §  13 ;  409  §  14;  493  §  21 ;  513  §  8 ; 
614  §  12, 13, 14;  615  §  15, 16, 17, 18 ;  616  §  22;  517  §  26,  37  ; 
618  §  29,  30,  81 ;  619  §  32, 33, 34 ;  621  §  41 ;  525  §  54, 55  ;  527 
§  62 ;  628  §  67, 69 ;  580  §  75,  76,  77,  78 ;  631  §  79,  81,  83 ;  588  §  6 ; 
700  §  1,  2,  3 ;  701  §  4, 6, 6, 7 ;  703  §  10,  11,  13 ;  703  §  14,  16 ;  705 
§  38, 24;  706  §  26,  27, 29;  707  §  82,  38,  34;  708  §  43. 
(See  Dbpendbnct  of  Poliot  and  Premium  Note.) 
WARRAIITY  AND  REPRESENTATION, 

agreement  to  remove  building  240  §  14. 
as  to  usage  in  manufacturing  establishments,  709  §  1. 
lamps  in  picking  room,  710  §  8. 
keeping  rags,  718  §  81. 
material  of  building,  103  §  61. 
mode  of  keeping  ashes,  711  §  8;  718  §  16 ;  717  §  30. 
title  or  encumbrance,  632  §  11 ;  712  §  12.     ' 
breach  of.  not  admissible  under  general  issue,  508  g  92. 
building  belongs  to  one  and  insured  as  firm's,  654  §  76. 
calling  one's  self  owner,  362  §  60 ;  650  §  62, 63 ;  651  §  65 ;  654 

§76. 
counting-room  warmed  by  stove,  713  §  15. 
fires,  730  §45, 46;  732  §53. 
risk  and  value  of  property  insured,  714  §  30. 
intention  to  navigate,  716  §  38. 
change  and  alteration  after  issue  of  policy,  717  §  39. 
lamps  in  woolen  factory,  182  §  7 ;  731  §  48. 
occupation,  685  §  55 ;  687  §  61 ;  688  §  63. 
charge,  warranty  to  be  "  substantially  "  kept,  misleading,  723  §  51. 
definition  of,  711  §  9;  712  §  11 ;  714  §  19;  718  §  36;  719  §  40,  41. 
bad  effect  of,  81  §  4:  88  §  7;  95  §  32;  96  §  35;  710  §  2,  4;  712  §  11, 

13;  718  §  16 ;  714  §  17 ;  716  §  26;  719  §  89. 
habitual  use,  721  §  48. 
how  construed,  188  §  9;  711  §  10;  718  §  38. 
implied  warranty,  715  §  21 ;  716  §  26. 
in  case  of  re-insurance,  716  §  27. 
61 


•*<«>»»*«tt'»«o«i.<«««. 


7 


794 


nn)£x. 


WARRANTY  AND  REPRESENTATION— co««i7i««<?. 

of  water  tanks  to  be  well  supplied,  714  §  18 ;  720  §  42  ;  731  §  47. 
permission  is  not  warranty,  ttl7  §  22. 
promise  to  build  chimney,  710  §  6. 

put  in  iron  door,  844  §  4S. 
examine  mill  after  work,  700  §  1. 
statement  of  an  intention  not  to  run  nignts,  715  §  22. 

"  it  is  for  burning  hard  coal,"  711  §  6. 
material  to  the  risk,  690  §  73 ;  695  §  14 ;  718  §  84,  85 ;  710  §  88 ;  721 

§49. 
verbal  representations,  845  §  46 ;  474  §  86  ;  711  §  7 ;  720  §  46. 
warranties  must  be  expressed,  not  implied,  721  §  50 ;  722  §  53. 
watchman  to  be  on  the  premises,  690  §  74 ;  723 1  8, 4 ;  724  §  0,  7,  8. 
what  statements  are  representations  meei^ly,  88  §  7;  670  §  17;  688 

§  49;  710J^;  l"^  §  16;  715  §  24;  71| 


warranties,  92 
§23;  TMt, 
when  application  is  warranty^,  80>S 


»W.        \ 


representation, 


...  §  0^  712  §  18;  715 
9:.'np§49t 
,ll[^;  9fc|l5;  92  §24;  721 

87  8,6;  88  §6;  89 

2  §  14  ;  718  §  32. 

affirmative,  669 .§  16;  6^8 Jl3|:  63)r  §  89;  681  §  45;  684  §  50. 

continuing,  231  §!,lOr  ^SO'lhyllTO  §  1 ;  690  §  76 ;  709  §  1 ;  719 

40;  720  §  44,^45,  4tt?,722*'52. 
promiaBorvr46Ct§  8;  6^.^;  710  §  5;  715  §  22;  720  §  46. 
without  steam,ii^O  §  73.  4 ,        -fc/ 
(See  Description  of  PRoirtsR'i'T  Iirst^ysb,  Distance  of  other  Buildings, 

Encvmbrjuk^^e,  TiTiik  Use  And  Occupation,  Value.) 
WATCHMAN,  672  §  24^  'r22  ethqj  690  §  74. 
WHAT  PROPERTr  IS  COVERBD  BY  POLICY, 

interest  of  husband  in  property  of  wife,  734  8  80. 
of  partnership  property  by  one  partner,  785  §  32. 
an  open  policy,  785  §  38. 
where  other  insurance,  735  §  34. 
after  special  renewal,  731  §  25. 
general  renewal,  574  §  2. 
exceptions  of  plate  and  paintings,  726  g  2. 
for  benefit  of  carriers,  372  §  26. 

whom  it  may  concern,  873  §  27. 
articles  used  in  packing  includes  coal,  787  §  40. 
house  includes  appurtenances,  727  §  6 ;  784  §  28. 
contained  in,  738  §  43, 47. 
situate  on  railroad,  covers  boat,  737  §  41. 
on  furniture,  linen  and  wearing  apparel,  726  §  1. 
stock  in  trade  of  a  baker,  726  §  4. 

furniture  dealer,  734  §  29. 
wearing  apparel  and  furniture,  727  §  7, 8. 
barque  "  now  being  built,"  727  §  9 ;  738  §  16. 
fixtures,  728  §  10. 

merchandise,  596  §  34;  736  §  36 :  738  §  44, 46. 
assured's  own,  does  not  cover  goods  at  his  risk,  737  §  39. 
assured  rights,  individually  not  as  partners,  737  §  45. 
unfinished  house,  728  §  11. 
stock  of  ship  builder,  728  §  12. 

•'  building  used  for  manufacture  of  lead  pipe,"  733  §  27. 
clothing  and  jewelry,  being  stock  in  trade,  728  §  14. 
"  stock  of  watches,  watch  trimmings,  &c."  729  §  17. 


INDEX. 


795 


§42;  721  §47. 


16  §  22 ;  720  §  46. 


WHAT  PROPERTY  IS  COVERED  BY  FOLlCY—continwd. 

English,  American,  and  West  India  goods,  729  §  18. 

refined  oil,  786  §  85. 

steam  saw  mill,  729  §  19. 

"  road  furniture  on  line  of  their  road,"  &c.,  729  §  20. 

starch  factory,  780  §  21. 

wood-house,  780  §  22. 

comer  store,  782  §  28. 

buildings  privileged  to  contaiu  gunpowder,  827  §  1. 

all  articles  making  up  the  stock  of  a  pork-house,  221  §  8. 

property  acquired  after  insurance^  727  §  6. 

property  in  shed  between  two  buildings  described,  726  §  3. 
to  mortgagee  who  has  prior  mortgages,  249  §  7. 
where  goods  are  removed,  728  §  15 ;  784  §  31 ;  Removal. 

(See  CONSTBUCTION  AND  RiBK.) 

WHO  MAY  SUE, 

in  action  against  incendiary,  620  §  9. 

case  of  subrogation,  518  §  1, 2 ;  619  §  6, 8 ;  620  §  9. 
on  an  assigned  policy,  182  §  18, 17  ;  162  §  8 ;  819  §  5 ;  365  §  81 ;  481 
§  54  ;  489  |  5;  789  §  1,  2,  8;  740  §  6;  741  §  9,  10  ;  742   §  15, 
18,  17  ;  743  §  20,  21 ;  744  §  24 ;  747  §  29,  82,  83 ;  748  §  34,  38  ; 
142  §  66. 
on  covenants  to  insure,  209  §  7. 

transferred  premium  note,  547  §  10. 
policy  to  B.  afllrmed  to  B.  and  C ,  789  §  4. 
agent,  741  §  11 ;  747  §  81. 
one  of  two  joint  owners,  741  §  18. 
firm  after  death  of  one  partner,  745  §  27. 
warehouseman,  416  §  4. 
assigned  and  re-assigned,  741  §  8. 
after  death  of  assured,  746  §  28;  748  §  39. 
executor,  748  §  87. 
open  policy  for  whom  it  may  concern,  743  §  19. 
poUcy  payable  to  third  party,  181  §  18 ;  740  §  5 ;  741  §  12 ;  748 

§  18,  20, 
after  release  by  one  member  of  a  firm  to  others,  218  §  28. 
surviving  partner,  361  §  63. 
under  New  York  act  of  1849,  747  §  30. 
where  policy  makes  loss  payable  to  third  party,  748  §  85,  36. 
policy  payable  to  mortgagee,  63  §  26 ;  740  §  7 ;  744  §  23, 24  ;  746  §  28. 
when  on  goods  in  trust  or  on  commission,  327  §  17  ;  862  §  68. 
stockholder  may  sue,  863  §  64. 

tax  for  benefit  of  college,  latter  has  no  vested  right  in,  628  §  16. 
suits  by  receivers,  546  §  6. 

where  policy  is  to  joint  parties,  68  §  11 ;  60  §  16 ;  61  §  21 ;  65  §  32 ; 
70  §  48,49;  378  §  80;  637  §  28;  744  §  35  ;  748  §  2. 
premises  are  alienated  after  loss,  129  §  6. 
WITNESS, 

managers  competent  if  members  are,  294  §  97. 
WORDS, 

(See  CONSTRUOTION.) 

WRITTEN  PORTION  OF  POLICY, 

as  to  use  and  occupation,  618  §  12  ;  614  §  14 ;  666  §  3 ;  750  §  1,  8 ; 
751  §  4,  5,  6,  7. 
who  may  sue,  749  §  2. 
value,  750  §  4. 

goods  on  commission,  221  §  8.     . 
conflict  between  written  and  printed,  752  §  8,  9. 


